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 Liberal and Libertarian-Conservative writers are divided between those who think that the presidency possesses too much power in our political system and those who believe that this is not a major issue. Starting with the links below, find one or more sites that relate to the topic of presidential power. Then use those sites and the Rossiter and Neustadt readings from Woll to discuss the topic.


1000 WORDS




2 of which must come from the link below

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The Logic of American Politics
10th Edition

To Dianne, Kate, Jeff, and Julie

The following dedication to James Madison is from the oldest American government
textbook we have found: William Alexander Duer’s Outlines of the Constitutional
Jurisprudence of the United States, published in 1833.

To you, Sir, as the surviving member of the august assembly that framed the
Constitution, and of the illustrious triumvirate who, in vindicating it from the
objections of its first assailants, succeeded in recommending it to the adoption
of their country; to you, who, in discharging the highest duties of its administra-
tion, proved the stability and excellence of the Constitution, in war as well as in
peace, and determined the experiment in favor of republican institutions and the
right of self-government; to you, who in your retirement, raised a warning voice
against those heresies in the construction of that Constitution which for a moment
threatened to impair it; to you, Sir, as alone amongst the earliest and the latest
of its defenders,—this brief exposition of the organization and principles of the
National Government, intended especially for the instruction of our American
youth, is most respectfully, and, in reference to your public services, most properly

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August 1st, 1833.

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The Logic of
American Politics

10th Edition

Samuel Kernell
University of California, San Diego

Gary C. Jacobson
University of California, San Diego

Thad Kousser
University of California, San Diego

Lynn Vavreck
University of California, Los Angeles

Timothy Johnson
University of Minnesota


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Names: Kernell, Samuel, author. | Jacobson, Gary C., author. |
Kousser, Thad, author. | Vavreck, Lynn, author. | Johnson,
Timothy D., author.

Title: The logic of American politics / Samuel Kernell, University of
California, San Diego, Gary C. Jacobson, University of California,
San Diego, Thad Kousser, University of California, San Diego,
Lynn Vavreck, University of California, Los Angeles,
Timothy Johnson, University of Minnesota.

Description: Tenth Edition. | Thousand Oaks, California :
CQ Press | SAGE, [2021] | Ninth edition: 2016. |
Includes bibliographical references and index.

Identifiers: LCCN 2020049384 | ISBN 9781071815977
(Paperback : acid-free paper) | ISBN 9781071839805 |
ISBN 9781071815960 (ePub) | ISBN 9781071815953 (ePub) |
ISBN 9781071815946 (PDF)

Subjects: LCSH: United States—Politics and government—

Classification: LCC JK276 .K47 2021 | DDC 320.47301—dc23
LC record available at

This book is printed on acid-free paper.

21 22 23 24 25 10 9 8 7 6 5 4 3 2 1

Brief Contents

Preface xviii
A Note to Students xxvi

Chapter 1 • The Logic of American Politics 1

Part I The Nationalization of Politics

Chapter 2 • The Constitution 33

Chapter 3 • Federalism 89

Chapter 4 • Civil Rights 131

Chapter 5 • Civil Liberties 185

Part II The Institutions of Government

Chapter 6 • Congress 231

Chapter 7 • The Presidency 297

Chapter 8 • The Bureaucracy 347

Chapter 9 • The Federal Judiciary 391

Part III The Public’s Influence on National Policy

Chapter 10 • Public Opinion 435

Chapter 11 • Voting, Campaigns, and Elections 475

Chapter 12 • Political Parties 507

Chapter 13 • Interest Groups 549

Chapter 14 • Media 593

Part IV Conclusion

Chapter 15 • Is There a Logic to American Policy? 623

Reference Material 653
Glossary G-1
Notes N-1
Index I-1
About the Authors A-1

Detailed Contents

Preface xviii
A Note to Students xxvi

Chapter 1 • The Logic of American Politics 1

The Importance of Institutional Design 4
Constitutions and Governments 6

Authority versus Power 7
Institutional Durability 7
The Political System’s Logic 8

Collective Action Problems 8
Coordination 9
The Prisoner’s Dilemma 12

The Costs of Collective Action 21
Transaction Costs 21
Conformity Costs 22

Representative Government 25
The Work of Government 27
Conclusion: Collective Action and America’s Constitution 29
Key Terms 29
Suggested Readings 30
Review Questions 30

Part I The Nationalization of Politics

Chapter 2 • The Constitution 33

The Road to Independence 36
A Legacy of Self-Governance 36
Dismantling Home Rule 38
The Continental Congresses 40
The Declaration of Independence 41

America’s First Constitution: The Articles of Confederation 43
The Confederation at War 43
The Confederation’s Troubled Peace 46

Drafting a New Constitution 49
Philosophical Influences 50
Getting Down to Business 51
The Virginia and New Jersey Plans 51

Features of the Constitution 53
The Great Compromise 53
Checks and Balances 56
Designing the Executive Branch 57
Designing the Judicial Branch 59
Amending the Constitution 60

Substantive Issues 62
Foreign Policy 62
Interstate Commerce 62
Slavery 63
Women 64

The Fight for Ratification 65
The Federalist and Antifederalist Debate 65
The Influence of The Federalist 68

The Theory Underlying the Constitution 69
Federalist No. 10 70
Federalist No. 51 73

Designing Institutions for Collective Action: The Framers’ Tool Kit 74
Command 75
Veto 78
Agenda Control 79
Voting Rules 80
Delegation 82

Assessing the Constitution’s Performance in Today’s American Politics 84
Key Terms 85
Suggested Readings 86
Review Questions 87

Chapter 3 • Federalism 89

American-Style Federalism 93
Evolving Definitions of Federalism 95

Federalism and the Constitution 98
Transformation of the Senate 98
Constitutional Provisions Governing Federalism 99
Interpreting the Constitution’s Provisions 101

The Paths to Nationalization 103
Historic Transfers of Policy to Washington 104
Nationalization—The Solution to States’ Collective Dilemmas 106

Politics to Policy: Free Federal Dollars? No Thanks, I’ll Take
Political Currency Instead 108

The Political Logic of Nationalization 113
Strategy and Choice: Maryland Declares Its Political Independence:
Partisan Passage of the “Maryland Defense Act” 114

Modern Federalism 116
The National Government’s Advantage in the Courts 116
Preemption Legislation 118
The Carrot: Federal Grants to the States 118

Logic of Politics: States’ Rights Meet Reading,
Writing, and ’Rithmetic: The Battle over the Common Core 121

The Stick: Unfunded Mandates 123
Evolving Federalism: A By-product of National Policy 127
Key Terms 128
Suggested Readings 128
Review Questions 129

Chapter 4 • Civil Rights 131

What Are Civil Rights? 134
The Civil Rights of African Americans 135
The Politics of Black Civil Rights 136

The Height of Slavery: 1808–1865 137
Reconstruction: 1865–1877 141

Strategy and Choice: The Emancipation Proclamation 142

The Jim Crow Era and Segregation: 1877–1933 146
Democratic Party Sponsorship of Civil Rights:

1933–1940s 149
Emergence of a Civil Rights Coalition: 1940s–1950s 153
The Civil Rights Movement: 1960s 157

Politics to Policy: The 1964 Civil Rights Act and Integration
of Public Schools 161

Current Civil Rights Policy 165
The Legacy of the Civil Rights Movement 171

Equal Rights for Women: The Right to Vote 171
Women’s Rights in the Modern Era 173
Rights for Hispanic People 175
LGBTQ+ Rights 179
Challenging Tyranny 181

Key Terms 182
Suggested Readings 182
Review Questions 183

Chapter 5 • Civil Liberties 185

Nationalization of Civil Liberties 187
The Bill of Rights Checks Majority Rule 188

Writing Rights and Liberties into the Constitution 190
The First Ten Amendments 191
Incorporation via the Fourteenth Amendment 192
Judicial Interpretation 195
Major versus Peripheral Rights 197

Freedom of Speech 197
Political Protest and Violence 198
Disturbing Speech 199
Sexually Explicit Expression 199

Politics to Policy: Corporate Free Speech 201

Freedom of the Press 202
Freedom of Religion 203

Establishment 204
School Prayer and Bible Reading 206
Free Exercise 207

Gun Rights 208
Legislative Action and the Second Amendment 210

Criminal Rights 211
Fourth Amendment: Illegal Searches and Seizures 213
Fifth Amendment: Self-Incrimination 216
Sixth Amendment: Right to Impartial Jury and Right to Counsel 218
Eighth Amendment: “Cruel and Unusual” Punishment 219

Privacy 223
Childbearing Choices 223
Privacy on the Internet 225

Civil Liberties as Public Policy 226
Key Terms 228
Suggested Readings 228
Review Questions 229

Part II The Institutions of Government

Chapter 6   • Congress 231

Congress in the Constitution 234
Powers of Congress 235
The Electoral System 236
Congressional Districts 237

Strategy and Choice: The Republican Gerrymander in 2012 240

Unequal Representation in the Senate 242

Congress and Electoral Politics 242
Candidate-Centered versus Party-Centered Electoral Politics 243
National Politics in Congressional Elections 246
Representation versus Responsibility 248

Who Serves in Congress? 249
Basic Problems of Legislative Organization 253

Need for Information 253
Coordination Problems 254
Resolving Conflicts 254
Collective Action 255
Transaction Costs 255
Time Pressures 256

Organizing Congress 256
The Parties 257
Increased Partisanship 260
The Committee Systems 266
Congressional Staff and Support Groups 275

Making Laws 277
Introducing Legislation 277
Assignment to Committee 278
Hearings 279
Reporting a Bill 280
Scheduling Debate 280
Debate and Amendment 283

Logic of Politics: The Origin and Evolution of the Senate Filibuster 284

The Vote 286
Reconciling Differences 288
To the President 289
A Bias against Action 290

Evaluating Congress 291
Key Terms 294
Suggested Readings 294
Review Questions 295

Chapter 7 • The Presidency 297

The Historical Presidency 300
The Era of Cabinet Government 301

Strategy and Choice: Lincoln and His Cabinet 302

Parties and Elections 303
The Modern Presidency 304

Modern Presidents as Problem Solvers 304
Divided Party Control of Government 305

The President as Commander in Chief and Head of State 309
The Commander in Chief 310
Head of State 311

The President as Chief Executive 313
Authority via Delegation 313
Unilateral Authority 316
Emergency Powers 318
Budgeting 319

The President as Legislator 320
The Veto 322

Going Public 327
The Institutional Presidency 334
Conclusion 342
Key Terms 344
Suggested Readings 344
Review Questions 345

Chapter 8 • The Bureaucracy 347

The Development of the Federal Bureaucracy 351
Modest Beginnings: The Dilemma of Delegation 352
The Federalist Years: A Reliance on Respectability 353
Democratization of the Civil Service: The Spoils System 354
Civil Service Reform 355

An Expanding Government 356
The Cabinet 358
Noncabinet Agencies 360

Bureaucracy in Action 365
Logic of Politics: The Deep State Writes an Op-Ed 366

Bureaucratic Culture and Autonomy 367
Politics to Policy: Can You Just Get Rid of Bureaucracy?
The “Abolish ICE” Movement 368

Bureaucrats as Politicians 370
Bureaucratic Infighting 372

Who Controls the Bureaucracy? 372
Methods of Congressional Control 373
The President and the Bureaucracy 376
The Courts and the Bureaucracy 380
Iron Triangles, Captured Agencies, and Issue Networks 382

Strategy and Choice: A Fight with a Bureaucrat Goes Global 383

Bureaucratic Reform: A Hardy Perennial 385
The Logic of Red Tape 385
The Bureaucratic Reward System 386

Key Terms 388
Suggested Readings 388
Review Questions 389

Chapter 9 • The Federal Judiciary 391

Setting the Stage for Judicial Review 393
Three Eras of the Court’s Judicial Review 397

Nation versus State 398
Regulating the National Economy 400
The Rise of Civil Rights and Civil Liberties 403
A Fourth Era? Reasserting Judicial Review and a Return to States’ Rights 404

The Structure of the Federal Judiciary 406
Jurisdiction of the Federal Courts 407
The Supreme Court’s Delegation 408
The Limits of Internal Control 410

Judicial Decision-Making 412
Selecting Cases 413
Doctrine: Policymaking by the Court 415
Deciding Doctrine 419

Politics to Policy: Judicial Activism 420

The Supreme Court’s Place in the Separation of Powers 422
Absence of Judicial Enforcement 423
Constitutional and Statutory Control 424
Judicial Recruitment 425

Does a Politicized Judiciary Alter Separation of Powers? 431
Key Terms 432
Suggested Readings 432
Review Questions 433

Part III The Public’s Influence on National Policy

Chapter 10 • Public Opinion 435

What Is Public Opinion? 436
Measuring Public Opinion 437
The Origins of Public Opinion 440

Attitudes 440
Ideologies 441
Partisanship 443
Acquiring Opinions 444
Information 447
Framing 449

Strategy and Choice: Framing Joe Biden, Hillary Clinton,
Ted Cruz, and Marco Rubio 450

Is Public Opinion Meaningful? 450
Stability of Aggregate Public Opinion 451
Opinion Leadership 454

The Content of Public Opinion 456
Opinions about Democratic Institutions 457
Opinions about Government 458
Public Opinion on Issues 461

Effects of Background on Public Opinion 466
Race and Ethnicity 467
Gender 468
Income 468
Education 469
Religion 469
Other Demographic Divisions 470

Public Opinion: A Vital Component of American Politics 470
Key Terms 471
Suggested Readings 471
Review Questions 472

Chapter 11 • Voting, Campaigns, and Elections 475

The Logic of Elections 476
The Slow Expansion of the Right to Vote 477

Wider Suffrage for Men 477
Suffrage for Women 478
Suffrage for African Americans and Young Americans 479

Who Uses the Right to Vote? 479
Individual Factors Affecting Turnout 480
Institutional Factors Affecting Turnout 481
How Do Voters Decide? 482
Past Performance and Incumbency 482
Assessing the Issues and Policy Options 483
Voter Cues and Shortcuts 484
The Power of Party Identification 485

The Basic Necessities of Election Campaigns: Candidates and Messages 486
Getting Out the Message 488
Showing That “I’m Just Like YOU!” 489
Getting Attention 490
Political Advertising and Attacks 491

Campaign Money 494
Regulating Campaign Money 495
The Flow of Campaign Money 497

How Are Campaign Funds Spent? 498
Where Are Presidential Campaign Funds Spent? 500

The Logic of Elections Revisited 501
Key Terms 503
Suggested Readings 503
Review Questions 504

Chapter 12 • Political Parties 507

The Constitution’s Unwanted Offspring 509
Incentives for Party Building 510
Basic Features of the Party System 513

Development and Evolution of the Party Systems 516
The First Party System: The Origin of American Parties 516
The Second Party System: Organizational Innovation 518
The Third Party System: Entrepreneurial Politics 522
The Fourth Party System: Republican Ascendancy 527
The Fifth Party System: The New Deal Coalition 528

Revival of the Parties: A Sixth Party System? 532
Partisanship Endures 533
Party Differences 533
Changes in the Party Coalitions 535
Modern Party Organizations 538

Expediency Persists 544
Key Terms 545
Suggested Readings 545
Review Questions 546

Chapter 13 • Interest Groups 549

The Logic of Lobbying 552
The Origins of Interest Group Politics in the United States 553

The Pluralist Defense of Interest Groups 555
Politics to Policy: High School Students Turned Gun
Control Lobbyists: An Interest Group Born from a Mass
Shooting Vows #NeverAgain 557

The Problem of Collective Action 559
Contemporary Interest Groups 562

Why Have Interest Groups Proliferated? 563
Fragmentation and Specialization 566

What Do Interest Groups Do? 568
Insider Tactics: Trafficking in Information and

Cultivating Access 568

Strategy and Choice: Why Spend Millions on Lobbying?
Because It Is Worth Billions 572

Outsider Tactics: Altering the Political Forces 573
Litigation 576

Interest Groups and Elections 577
Logic of Politics: Labor Unions, Free Riding, and the Fees That
Fund Political Power 581

Interest Group Politics: Controversial and Thriving 585
Key Terms 589
Suggested Readings 589
Review Questions 590

Chapter 14 • Media 593

Development of the News Business 594
The Economics of Early Newspapers 594
Rise of the Penny Press 595
Emergence of Radio and Television 596
The Digital Revolution: Internet and Mobile 597

Strategy and Choice: Wi-Fi Brings Sectors Together to Solve
Coordination Problems 599

A Tragedy of the Commons: Broadcast Technology
Introduces Regulation 600

An Ever-Changing News Media 600
Legacy News as a Consumer Product: How the News Gets “Made” 601

Legacy News Producers: Reporters and Their News Organizations 601
How Legacy News Is Produced: Content and Form 609
How News on Social Media Is Generated 610
Limits on the Media 611

Demand for and Effects of News 613
Where People Get Their News 613
How the Media Influence Citizens 613

News Media as the “Fourth Branch” 618
Politician–Press Relations Then and Now 619
Key Terms 620
Suggested Readings 621
Review Questions 621

Part IV Conclusion

Chapter 15 • Is There a Logic to American Policy? 623

Free Riding and Health Care 625
Politics to Policy: How Bipartisan Compromise Turned a $750 Billion
Pandemic Stimulus Proposal into a $2 Trillion Deal 630

The Obstacles to Taking Domestic Action to Stop Global Climate Change 631
The Logic of a Government Shutdown 636
The Prisoner’s Dilemma of Entitlement Reform 638
The Success and Failure of Collective Action: A Tale of Two Tax Reforms 642
Logic of Politics: The Structure of Government and Anti-Tobacco Laws 644

Conclusion 648
Strategy and Choice: Saying No to Getting to Yes: Why an Immigration
Deal Has Proven Elusive 649

Key Terms 651
Suggested Readings 651
Review Questions 652

Reference Material 653
Glossary G-1
Notes N-1
Index I-1
About the Authors A-1



Donald Trump’s election and his first term in office seem only to point out the illogic of
American politics. Since his historic election in 2016, America’s politics has been in
continuous tumult. The question we confront as we take the Trump presidency and the
COVID-19 pandemic into account asks, does Donald Trump’s election and first term in
office break the mold, requiring us to rethink Logic’s approach to the systematic forces and
processes that govern the play of politics in Washington and across the nation? Perhaps
not. The tumultuous events of these years (and of 2020 in particular) might represent the
proverbial “exception that proves the rule.” If the latter, Trump’s election and presidency
allow us to glean new insights into American politics in other political actors’ responses to
Trump’s unconventional behavior. Answering this question lies at the heart of this revision.

Obviously, assessment of the COVID-19 crisis and the extraordinary 2020 election
are major topics of Chapter 11’s coverage of voting and elections. Sizing up Trump’s first
term occupies much of the attention of Chapter 7 on the presidency. In both we seek to
square the Trump years with the stable systematic forces at work in both arenas. But this
question pervades every other chapter as well. We close Chapter 2 (“The Constitution”)
by considering the proliferation of contentious separation of powers issues that in some
instances preceded the Trump presidency but that his policies have made more salient
and problematic. Chapter 3’s coverage of federalism explores the question of how our lay-
ered government facilitates and interferes with addressing a pandemic, spotlighting the
cutthroat competition between states for medical and testing supplies that took place in
early 2020. Chapter 4 reports on the ongoing tribulations on two fronts: policing practices
when dealing with minorities and the still unresolved Deferred Action for Childhood
Arrivals (DACA) policy affecting several hundred thousand children brought into the
country illegally. This chapter also considers the Supreme Court’s intervention in the fight
over rights for LGBTQ people. With Democrats controlling the House and Republicans
the Senate and White House during the 116th Congress, Chapter 6 explores where they
found agreement and when partisan polarization set the chambers and branches at odds.

We learn in Chapter 8 just how extensive presidents’ administrative authority is, in
chronicling President Trump’s directions to administration officials to roll back the
Obama administration’s extensive formal and informal regulations of businesses and
state administration of federal programs. Chapter 9 finds the federal judiciary giving new
meaning to activism in which an increasing number of district judges in the states weigh
in on national policy by issuing national injunctions, again lining up consistently with the


preferences of the party of the president who appointed them. Chapter 10 takes a close
look at public opinion, paying particular attention to issues on which it has changed over
the last several decades but also to issues on which opinion has been remarkably stable.
Chapter 12 notes the increasingly important role of political parties in shaping American
politics and highlights the central function of parties: to make it easier for candidates to
get votes and easier for voters to make choices.

Chapter 13 introduces the story of Alexandria Villasenor, a 14-year-old activist who
spent every Friday for 41 weeks demonstrating for climate action at the headquarters of the
United Nations, sitting through rain, sleet, snow, and the polar vortex, as an example of a
grassroots approach to interest group influence. Chapter 14 addresses the ever-changing
role of the media in American politics. In this edition, we separate media into legacy media,
digital-only media, and social media and discuss how the news is produced and consumed
for each type. And in Chapter 15, we use the logic of politics to explain what drove President
Trump to shut down the government in 2019 in the attempt to obtain federal funding for a
wall, probe the incentives that Congressional Democrats responded to in this policy debate,
and explain the eventual political and policy outcomes of this high-stakes battle.

One of the themes of The Logic of American Politics is that, alongside the outsized
personalities that inhabit Washington, DC, and the idiosyncratic events that appear to
drive it, systematic forces remain at work. The book’s goal is to help students understand
these forces and to see how they shape the choices of political leaders today. We want to
help readers discern the rationale embedded in the extraordinary and complex array of
American political institutions and practices. To accomplish this goal, we analyze political
institutions and practices as (imperfect) solutions to problems facing people who need to
act collectively. We highlight recurring obstacles to collective action in various contexts to
illuminate the diverse institutional means that American politicians have created to over-
come them. These obstacles include the conflict over values and interests, the difficulty
of aggregating individual preferences into collective decisions, the need for coordination,
and the threat of reneging implicit in every collective undertaking. Stable political com-
munities strengthen their capacity to act collectively and reduce the costs of doing so by
fashioning appropriate institutions. These institutions feature majority and plurality rules
and procedures that convert votes into representation, delegate authority to agents, and
permit some institutional actors to propose courses of action while allocating to others
the right to veto proposals. Throughout the book we emphasize the strategic dimension
of political action, from the Framers’ tradeoffs in crafting the Constitution to the efforts of
contemporary officeholders to shape policy, so students can understand current institu-
tions as the products of political conflicts, as well as the venues for resolving them.

New challenges pose fresh problems for collective action for which current institu-
tions may seem inadequate. The institutions created to deal with the challenges of col-
lective action at one historical moment can continue to shape politics long after those
challenges have receded. Therefore, we pay a good deal of attention to the historical devel-
opment of political institutions, a narrative that reveals politicians and citizens grappling

xx The Logic of American Politics

intellectually, as well as politically, with their collective action problems and discovering
the institutional means to resolve them.

This book is the product of our nearly forty years of teaching American politics in a
way that seeks to go beyond the basics. In addition to introducing students to descriptive
facts and fundamental principles, we have sought to help them cultivate an ability to ana-
lyze and understand American politics for themselves. Each of us is variously associated
with the rational choice school, yet over time our research and teaching have benefited
from many of its insights, especially those familiarly referred to as “the new institutional-
ism.” We have found these insights helpful in making sense of American politics in terms
that students can grasp intuitively. Having absorbed these ideas into our own scholarly
thinking, we employ them here to help students understand what the American political
system looks like and why it has assumed its present shape.

Our emphasis on the primacy of institutions extends well beyond collecting and pro-
cessing the preferences of citizens and politicians. In that institutions may structure the
choices available to voters and their leaders, we view them as indispensable in explaining
public opinion and the strategic behavior of the political organizations that seek to influ-
ence and mobilize these preferences. We therefore have adopted a somewhat unorthodox
structure for the book. We cover the rules of the game and the formal institutions of gov-
ernment before discussing the “input” side of the political process—public opinion, elec-
tions, parties, and interest groups—because we emphasize the way rules and institutions
structure the actions and choices of citizens and politicians alike.

The introduction offers ideas and concepts employed throughout the text. They can
be classified under two broad categories: collective action problems and institutional design
concepts. Both sets of ideas have deeply informed each chapter’s argument. Because this
is an introduction to American politics, rather than to political theory, we have inten-
tionally sublimated the analytic ideas in favor of enlisting them to explicate real politics.
Along with traditional concepts that remain indispensable to understanding American
politics—such as representation, majority rule, and separation of powers—we intro-
duce students to a number of ideas from economics that political scientists have found
increasingly useful for exploring American politics. These include the focal points of
coordination, prisoner’s dilemma, free riding, tragedy of the commons, transaction costs,
principal–agent relations, and public goods.

Organization of the Book
The substantive chapters are arranged in four parts.

Part I covers the foundational elements of American politics: the Constitution, feder-
alism, civil rights, and civil liberties. The chapters that cover these topics give students an


understanding of the political origins and development of the basic structure and rules of
the national polity.

Part II examines the major formal institutions of national government: Congress,
the presidency, the bureaucracy, and the federal judiciary. These chapters reveal how the
politics and logic of their development have shaped their current organizational features,
practices, and relations with one another.

Part III analyzes the institutions that link citizens with government officials, again
in terms of their historical development, political logic, and present-day operations.
Chapters in this section are devoted to public opinion; voting, campaigns, and elections;
political parties; interest groups; and the news media.

Part IV features a concluding chapter that evaluates American policymaking through
the lens of our collective action framework. Through five vignettes that span policies
from health care reform to global climate change, this chapter uses the concepts covered
throughout the book to yield insights into the sources of policy problems, point to possi-
ble solutions, and explain why agreement on those solutions is often difficult to achieve.
Equipped with this understanding of the logic of policymaking, students can apply the
same logic underlying these examples to other policy challenges, from immigration
reform to pork barrel spending and U.S. disputes with other nations. Students come away
from the chapter and the book as a whole with the tools needed to think in new ways
about how American government works.

Instructional Features
The Logic of American Politics includes special features designed to engage students’ atten-
tion and to help them think analytically about the subject.

• Learning objectives and key thematic questions at the beginning of each chapter
preview important themes and set the tone for critical thinking.

• Each chapter opens with a story from the real world of politics that introduces
one or more of the central issues to be explored in that chapter.

• In addition, important terms and concepts throughout the text appear in bold-
face the first time they are defined. These key terms are listed at the end of each
chapter, with page references to their explanations, and are defined in a glossary
at the back of the book.

• The Logic of Politics boxes explain the logical rationale or implications of some
institutional feature presented in the text.

• Another set of boxes, Strategy and Choice, explores how politicians use insti-
tutions and respond to the incentives that institutions provide in pursuing their
personal or constituencies’ interests.

xxii The Logic of American Politics

• In addition to examining the logic of the policymaking process in our conclud-
ing chapter, we continue to cover public policy where it is most relevant to the
discussion, incorporating policy issues throughout the book. Politics to Policy
boxes explain how policies reflect the underlying political rationale of the insti-
tutions that produce them.

• To encourage students to continue their studies of American politics beyond the
pages of this volume, we have included annotated reading lists at the end of each

Digital Resources
This text includes an array of instructor teaching materials designed to save you time and
to help you keep students engaged. To learn more, visit or contact your
SAGE representative at

Without the help and encouragement of department colleagues, friends, students, and the
editorial staff at CQ Press, this book never would have been completed. The book also has
benefited from the insightful and astute comments of colleagues at other institutions who
took time from their busy schedules to review chapters. We are deeply obliged to every-
one who has helped us along the way. In particular, we wish to thank Lawrence Baum,
Lee Epstein, Rosalind Gold, Richard Hart, Derek Holliday, Shawn Patterson, and Vickie
Stangl for their assistance in procuring data for tables and figures and clarifying historical

Our colleagues and students at the University of California, San Diego and the
University of California, Los Angeles have contributed to every aspect of the book, often
in ways they might not realize, for the way we think about politics is permeated by the
intellectual atmosphere they have created and continue to sustain. Lee Dionne assisted
us in revising those sections covering the judiciary and case law; Derek Bonnett collected
information for updating the presidency chapter. We are indebted to Charisse Kiino,
who regularly summoned her nonpareil skills as a diplomat, critic, dispatcher, coach,
and booster, and Scott Greenan for his steady oversight of the whole. Alissa Nance dil-
igently managed the book’s many gangling features, including not only the manuscript
and digital resources but, with the able help of Lauren Younker, also photographs and
cartoons, tables and figures, and citations. Mark Bast cheerfully entered the ring with the
authors to wrestle the prose into submission, and David Felts coordinated the editing and
production processes. We also wish to thank Tracy Buyan, who managed production;


Amanda Simpson, who managed the manufacturing; Scott Van Atta, who designed the
cover; and Erica DeLuca and Jennifer Jones for brochures, advertisements, and displays
for the professional meetings.

The following are colleagues across the country who have read and commented on
the past four editions and given us an abundance of good advice, much of which we took
in writing this revision. Equally essential, they kept us from making many embarrassing

Roberta Adams, Salisbury University

Danny M. Adkison, Oklahoma State

E. Scott Adler, University of Colorado

Scott H. Ainsworth, University of

Richard A. Almeida, Francis Marion

Ellen Andersen, University of Vermont

Phillip J. Ardoin, Appalachian State

Ross K. Baker, Rutgers University

Lawrence A. Baum, Ohio State

Michelle Belco, University of Houston

William T. Bianco, Indiana University

Sarah Binder, Brookings Institution and
George Washington University

Rachel Bitecofer, University of Georgia

Ray Block, University of Wisconsin–La

Christopher Bonneau, University of

Shenita Brazelton, Old Dominion

Jeremy Buchman, Long Island

Michael Burton, Ohio University

Suzanne Chod, North Central College

Rosalee Clawson, Purdue University

Christopher Austin Clemens, Texas
A&M University

Ann H. Cohen, Hunter College of the
City University of New York

Marty Cohen, James Madison University

Richard S. Conley, University of Florida

Michael Crespin, University of Georgia

Laura Mayate-DeAndreis, Modesto
Junior College

Michelle D. Deardorff, Jackson State

Katharine Destler, George Mason

John Domino, Sam Houston State

Keith Dougherty, University of Georgia

Justin Dyer, University of Missouri

Michael J. Faber, Texas State University

Jason Fichtner, Georgetown University

Richard S. Fleisher, Fordham University

xxiv The Logic of American Politics

John Freemuth, Boise State University

Yvonne Gastelum, San Diego State

John B. Gilmour, College of William &

Lawrence L. Giventer, California State

Brad Gomez, Florida State University

Craig Goodman, University of

Sanford Gordon, New York

Andrew Green, Central College

Paul Gronke, Reed College

Edward B. Hasecke, Wittenberg

Danny Hayes, George Washington

Valerie Heitshusen, Georgetown

Richard Herrera, Arizona State

Marc Hetherington, Vanderbilt

Leif Hoffman, Lewis-Clark State

Brian D. Humes, Georgetown

Jeffery Jenkins, University of Virginia

Joel W. Johnson, Colorado State

Paul E. Johnson, University of Kansas

Nicole Kalaf-Hughes, Bowling Green
State University

Chris Koski, James Madison University

Doug Kuberski, Florida State College at
Timothy M. LaPira, James Madison
Dan Lee, Michigan State University
Joel Lefkowitz, State University of
New York–New Paltz
Brad Lockerbie, East Carolina
Amy Lauren Lovecraft, University of
Roger Lukoff, American University
Anthony Madonna, University of
Forrest A. Maltzman, George
Washington University
Wendy Martinek, Binghamton
John McAdams, Marquette University
Madhavi McCall, San Diego State
Ian McDonald, Lewis & Clark College
Scott R. Meinke, Bucknell University
Rob Mellen Jr., Mississippi State
John Mercurio, San Diego State
Eric Miller, Blinn College, Bryan
Will Miller, Ohio University
William J. Miller, Southeast Missouri
State University
Richard Millsap, University of Texas at
Ashley Moraguez, University of North


Tracy F. Munsil, Arizona Christian

Timothy Nokken, Texas Tech University

Shannon O’Brien, University of Texas at

Bruce I. Oppenheimer, Vanderbilt

L. Marvin Overby, University of

Carl Palmer, Illinois State University

Hong Min Park, University of

Bryan Parsons, University of Tennessee
at Martin

Justin Phillips, Columbia University

Andrew J. Polsky, Hunter College

Alexandra Reckendorf, Virginia
Commonwealth University

Suzanne M. Robbins, George Mason

Jason Roberts, University of Minnesota

Beth Rosenson, University of Florida

Mikhail Rybalko, Texas Tech University

Eric Schicker, University of

Ronnee Schreiber, San Diego State

Mark Shanahan, University of Reading

Charles Shipan, University of Michigan

David Shock, Kennesaw State University

James D. Slack, University of Alabama at

Charles Anthony Smith, University of
California, Irvine

Carl Snook, Southern Polytechnic State

Tara Stricko-Neubauer, Kennesaw State

Joseph Ura, Texas A&M University

Brian Vargus, Indiana University–
Purdue University Indianapolis

Charles E. Walcott, Virginia Polytechnic
Institute and State University

Hanes Walton Jr., University of

Wendy Watson, University of North

Christopher Weible, University of

Patrick C. Wohlfarth, University of
Maryland–College Park

Frederick Wood, Coastal Carolina

Garry Young, George Washington

Carolyn Abott, St. John’s University

Mike Brown, Emerson College

Terry Filicko, Clark State Community

Jack Santucci, Drexel University

Finally, our families. Dianne Kernell; Jeff Lewis; Kate, Will, and Kat Kousser; and
Julie Maynard-Johnson also deserve our gratitude for putting up with what occasionally
seemed an interminable drain on our time and attention. We are sure they are as delighted
as we are to have this revision finished.


A Note to Students

Plan of the Book
Our analysis of the logic of American politics begins in Chapter 1 with an introduction
to the analytical concepts we draw on throughout the text. Although these concepts are
straightforward and intuitive, we do not expect you to understand them fully until they
have been applied in later chapters. The rest of the text is arranged in four main parts.

Part I looks at the foundational elements of the political system that are especially
relevant to understanding modern American politics. It begins with the constitutional
system (Chapter 2, “The Constitution”) and then moves on to the relations between the
national government and the states (Chapter 3, “Federalism”); the evolution of civil rights
and the definition of citizenship (Chapter 4, “Civil Rights”); and the establishment of civil
liberties, such as freedom of speech and religion (Chapter 5, “Civil Liberties”). A recurring
theme of Part I is nationalization, the gradual shift of authority from state and local gov-
ernments to the national government.

Part II examines the four basic institutions of America’s national government:
Congress (Chapter 6), the presidency (Chapter 7), the bureaucracy (Chapter 8), and the
federal judiciary (Chapter 9). The development of effective, resourceful institutions at the
national level has made it possible for modern-day politicians to tackle problems that in
an earlier time they would have been helpless to solve. We explain how all four institutions
have evolved along the paths initiated and confined by the Constitution in response to the
forces of nationalization and other social and economic changes.

Part III surveys the institutions that keep citizens informed about what their repre-
sentatives are doing and enable them to influence their elected officials through voting
and other forms of participation. Chapter 10, “Public Opinion,” explores the nature of
modern political communication by focusing on the ins and outs of mass public opin-
ion. Chapter 11, “Voting, Campaigns, and Elections,” examines the ways in which can-
didates’ strategies and voters’ preferences interact at the polls to produce national leaders
and, on occasion, create mandates for policies. The Constitution mentions neither politi-
cal parties nor interest groups, and the Framers were deeply suspicious of both. But they
are vital to helping citizens make sense of politics and pursue political goals effectively. In
Chapter 12, “Political Parties,” and Chapter 13, “Interest Groups,” we explain how and
why parties and interest groups have flourished as intermediaries between citizens and
government officials. President Woodrow Wilson once aptly observed that “news is the

xxviiA Note to Students

atmosphere of politics.” Chapter 14 looks at the news media both as channels of commu-
nication from elected leaders to their constituents and as independent sources of infor-
mation about the leaders’ performance. The chapter also considers the implications of the
rise of the Internet in coordinating the collective efforts of unorganized publics.

Part IV, which consists of Chapter 15, concludes our inquiry by evaluating American
public policymaking through the lens of our collective action framework to discern the
logic of the policymaking process.

Special Features
This book contains several special features designed to help you grasp the logic of
American politics. Because these features, including the substantive captions, play an inte-
gral role in the presentation and discussion, you should read them with as much care as you
do the text.

• At the outset of each chapter are key questions that preview important themes
and, we hope, will pique your curiosity.

• Within each chapter, thematic boxes labeled Logic of Politics consider more
fully the logical rationale and implications of certain features of government
design introduced in the core text.

• Another set of boxes, Strategy and Choice, focuses on the sometimes imag-
inative ways politicians enlist institutions to advance their agendas and their
constituents’ goals.

• A third set of thematic boxes, Politics to Policy, treats some of the public policy
issues that have sprung forth from the political process.

• Additional boxes, tables, figures, photographs, and other visuals clarify and
enliven the text.

• To encourage you to pursue more information on topics you find particularly
interesting, we have included annotated lists of suggested readings at the end of
each chapter.

How to Read the Graphs
A picture is worth a thousand words. You may think this book is too long as it is, but it would
be a lot longer if we couldn’t use figures and graphs to show you important relationships.
Figures tell stories, and if we have a figure in a chapter it is because the story it tells is impor-
tant to your understanding or thinking about the concepts in the chapter. Don’t skip the
figures! They are an important element in really understanding what we’re talking about.

xxviii The Logic of American Politics

Because figures are so important to learning, imagination, and discovery, it is impor-
tant you are comfortable interpreting them and feel at home looking at data presented
visually. Before we get started with substantive material, we wanted to make sure you
know how to evaluate the figures we use.

There are several types of figures. We use a few repeatedly:

• Bar graphs show numbers that are independent of each other. Examples might
include things like the number of people who preferred each of the presidential
candidates in the last election.

• Line graphs show you how numbers have changed over time. They are used
when you have data that are connected, and to show trends, for example, aver-
age support for the president in each month of the year.

• Cartesian graphs or scatter plots have numbers on both axes, which therefore
allow you to see how changes in one thing affect another. For example, we may
want to show how changes in consumer sentiment are related to changes in
presidential approval.

The first step in reading any figure or graph is understanding what you are looking at.

• The place to start is with the axes. Graphs generally have two axes, the lines that
run across the bottom of the figure and typically up the left side.

• The line along the bottom is called the horizontal or x-axis, and the line up the
side is called the vertical or y-axis. (An easy way to remember which one is which
is to think of the letter Y and its stem extending down the vertical axis line.)

• Both axes can contain either numbers or categories of things. They generally
start with the lowest value at the origin of the axes (the place where both lines
meet, the bottom left corner of the figure). The numbers or categories typically
increase (if they are cardinal in nature) as you move to the right on the horizon-
tal axis and up on the vertical axis.

• A good figure has labels on both axes to help the reader interpret the data. A
good figure also starts and ends at reasonable numbers. Checking the axes is an
important first step in reading a figure. They answer the questions, what is the
purpose of this figure, and how will it show me the data?

• The data in figures are often presented as lines, markers (like dots), or bars. In
scatter plots, which show the relationship between what is on the horizontal
and vertical axes, figures often contain a line across the diagonal at forty-five
degrees. This line is called the forty-five-degree line. It is helpful especially if
the axes of the figure take on the same values. In this case, the forty-five-
degree line represents the cases (the dots) where the values on the horizontal

xxixA Note to Students

axis match the values on the vertical axis exactly. Dots on the line are exact
matches. Dots off the line are not—specifically, those above the line are cases
in which values are higher on the y-axis than on the x-axis, and dots below the
line are the opposite.

• In addition to these important elements on the graph, the information around
the figure is also important. Good figures have a title that tells you exactly what
the story in the figure is. Figures should also give you a time frame for the data
they present and a note that tells you the source of the data shown and when it
was collected.

Practice interpreting a few graphs so you will be ready to think about the figures in the
chapters to come!

One More Thing
Politics, like every significant human endeavor, becomes more intriguing the more deeply
it is explored and understood. Our book aims to give you not only a strong basic founda-
tion for understanding political life in the present-day United States but also a glimpse of
how intellectually enjoyable it can be to grapple with its puzzles and paradoxes.

People line up outside a career center prior to its opening to find assistance with their unemployment claims amid the COVID-19
REUTERS/Bryan Woolston


The Logic of
American Politics1

The year 2020 was one of crises for Americans. The public
health crisis began suddenly with the arrival of the
COVID-19 pandemic. By February 29, the United States
recorded its first death from COVID-19, a number that would
rise to more than 340,000 by the year’s end. Shortly after
the pandemic’s onset, the government was struggling to
deal with it. Americans began to learn just how seriously
unprepared the national government was in many areas, as
test kits were in short supply.

In March, the pandemic surged, hitting New York City
especially hard. Outside of hospitals, refrigerated trailers
lined the streets, serving as makeshift morgues for COVID-19
casualties. Deficiencies in the government’s preparedness
became shockingly evident each day, as governors and public
health officials on the nightly news revealed hospitals had too
few ventilators for the very ill. Doctors and nurses treating
COVID-19 patients nationwide had limited access to personal
protective equipment (PPE) such as gloves, masks, and
medical respirators. Nursing homes often had no PPE for their
staffs. On March 14, 2020, President Donald Trump addressed
a group of governors on the shortages: “Respirators,
ventilators, all of the equipment—try getting it yourselves.”
With the federal government providing insufficient supplies
and little coordination, states were left on their own, bidding
against each other for PPE from foreign producers.*

Governors began to issue “stay at home” orders, hoping
to stem the tide of COVID-19 cases by limiting personal
contact. Those deemed “essential workers” remained on
the job, including supermarket employees, bus drivers, and
health care personnel. Meanwhile, millions of Americans
who could not work from home joined the rapidly swelling
ranks of the unemployed. By April, 23 million American


1.1 Summarize the importance
of institutional design in

1.2 Discuss the role of a
constitution in establishing
the rules and procedures that
government institutions must
follow for collective agreement.

1.3 Identify different types of
collective action problems.

1.4 Explain the costs of collective

1.5 Relate the different ways that
representative government

1.6 Discuss the similarities and
differences between private,
public, and collective goods.

*This problem could’ve been avoided had they approached testing and provi-
sion of critical supplies collectively, rather than individuallyWe discuss these
problems in Chapter 3.

2 The Logic of American Politics

workers had filed for unemployment benefits, fueling an economic crisis alongside the
public health crisis. In the second quarter of 2020, the United States experienced its
steepest quarterly drop in economic output on record.

Congress could not stop the pandemic, but it could try to relieve the potentially
catastrophic effects it was inflicting on the economy. By the end of May, Congress had
passed four relief bills that provided grants to more than 85 percent of small businesses and
boosted unemployment compensation by $600 a week. Big businesses, state governments,
health providers, and FEMA also benefited from these bills. The federal government’s
various programs of grants, loans, and tax breaks totaled more than $4 trillion.

Despite a divided Congress—Republicans running the Senate and Democrats in
control of the House—this bipartisan response to the crisis was extraordinary, both in
scale and speed. Each party’s politicians had different priorities, which led to marathon
negotiations and compromise. But a response was expected, and neither party wanted
to bear responsibility for blocking emergency assistance. Given the urgency, each side
basically got what it had sought in the bills. Legislators were much quicker in committing
funds than were their predecessors, who appropriated much less money during the 2009
financial crisis. Creative policy design also expedited agreement. For example, under the
Payroll Protection Program, small businesses received a loan that would be converted to
a grant if they maintained at least 75% of their payroll. As far as we know, this was a novel
(and successful) political solution to protecting businesses and workers.

When support for small businesses and the unemployed expired in August, Congress
recognized the need for more federal assistance. However, important political
circumstances had changed in ways that made the timely enactment of new relief
legislation difficult. The national debt had suddenly quadrupled, causing Republican
senators to blanch at passing the House Democrats’ initial proposal to spend several
trillion dollars on federal assistance. The two sides continued negotiations up to the
November election, but they did not make enough progress to pass a bill. This failure
to agree to a second round in a timely fashion illustrates the difficulty of legislating
when political power is divided in Washington. And it makes even more impressive
Washington’s quick and massive response to the crisis during the spring.

As this example shows, social choices inevitably breed conflict, especially when they
involve issues that affect the political parties’ core constituencies. Through politics,
people try to manage such conflicts. Neither side may be thrilled by the results, but
when politics succeeds, both sides discover a course of action that satisfies them more
than the status quo. However, politics does not always end in success. Resources are too
scarce to satisfy the competing claimants, and values prove irreconcilable. Even when
the configuration of preferences might allow reconciliation, the political process itself
may impede lawmakers’ efforts to agree on a new policy. Finally, successful politics does
not always lead to happy endings.

3Chapter 1: The Logic of American Politics

In more formal terms, politics is the process through which individuals and groups seek
agreement on a course of common, or collective, action—even as they disagree on the
intended goals of that action.* Politics matters because each party’s success in finding a
solution requires the cooperation of others who are looking to solve a different problem.
When their goals conflict, cooperation may be costly and difficult to achieve.

Success at politics almost invariably requires bargaining and compromise. Where the
issues are simple and the participants know and trust one another, bargaining may be
all that is needed for the group to reach a collective decision. Generally, success requires
bargaining and ends in a compromise, or a settlement in which each side concedes
some preferences to secure others.

Those who create government institutions (and the political scientists who study
them) tend to regard preferences as “givens”—individuals and groups know what they
want—that must be reconciled if they are to agree to some common course of action.
Preferences may reflect the individual’s economic situation, religious values, ethnic
identity, or some other valued interest. We commonly associate preferences with some
perception of self-interest, but they need not be so restrictive. Millions of Americans
oppose capital punishment, but few of those who do so expect to benefit personally
from its ban.

Reconciling disagreement over government action represents a fundamental problem
of politics. James Madison played a dominant role in drafting the Constitution, and
we repeatedly turn to him for guidance throughout this book. In one of the most
memorable and instructive statements justifying the new Constitution to delegates at
the state conventions who were deciding whether to ratify it, he explained in Federalist
No. 10 that the new government must represent and reconcile society’s many diverse
preferences that are “sown into the nature of man”:

A zeal for different opinions concerning religion, concerning government, and many
other points . . . have, in turn, divided mankind into parties, inflamed them with mutual
animosity, and rendered them much more disposed to vex and oppress each other
than to co-operate for their common good. So strong is this propensity of mankind
to fall into mutual animosities, that where no substantial occasion presents itself, the
most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly
passions and excite their most violent conflicts.

Certainly, Madison’s observation appears no less true today than when he wrote it in 1787.

*Throughout the text we frequently refer to some generic collectivity, whose members engage each other in
reaching a collective decision either to undertake some collective action or to produce some collective good. We
enlist these general terms whenever we offer a definition, an observation, or a conclusion that has a general

4 The Logic of American Politics

The Importance of Institutional Design
As participants and preferences in politics multiply and as issues become more complex
and divisive, unstructured negotiation rarely yields success. It may simply require too
much time and effort. It may require some participants to surrender too much of what
they value to win concessions from the other side. In other words, a compromise solu-
tion simply may not be present. And finally, and this is crucial, because here the careful
study of institutional design can make a difference, negotiation may expose each side to
too great a risk that the other will not live up to its agreements.

Fear of reneging may foster mutual suspicions and lead each side to conclude that
“politics” will not work. When this occurs, war may become the preferred alternative.
The conflict in the 1990s among Serbs, Croats, and Muslims in Bosnia followed such a
dynamic. The earlier collapse of Yugoslavia’s communist government resurrected ancient
enmities among people who had lived peacefully as neighbors for decades. In the absence
of effective political institutions they could count on to manage potential conflicts, eth-
nic and religious rivals became trapped in a spiral of mutual suspicion, fear, and hostility.

During the Great Depression, when millions of Americans were suddenly impoverished, many critics blamed unfettered capitalism.
The National Association of Manufacturers, still a politically active industry association, posted billboards like this one around the
country to bolster support for “private enterprise” by associating it with other fundamental preferences.
Courtesy of the Library of Congress Prints & Photographs Division

5Chapter 1: The Logic of American Politics

Without a set of rules prescribing a political process for reaching and enforcing collec-
tive agreements, they were joining militias and killing one another with shocking brutality
within a year. Today the former Yugoslav states are separate national governments striving
to build institutions that replace violence with politics.

Whether at war or simply at odds over the mundane matter of scheduling employee
coffee breaks, parties to a conflict benefit from prior agreement on rules and procedures
for negotiations. Indeed, this theme reappears throughout this book: a stable commu-
nity, whether a club or a nation-state, endures by establishing rules and procedures for
promoting successful collective action. In January 1999, when the Senate turned to the
impeachment trial of President Bill Clinton, the stage was set for an escalation of the parti-
san rancor that had marred the same proceedings in the House of Representatives. Yet the
Senate managed to perform its constitutional responsibility speedily and with a surpris-
ing degree of decorum thanks to an early, closed-door meeting in which all one hundred
senators endorsed a resolution that laid out the trial’s ground rules. More important, they
agreed to give the chamber’s Democratic and Republican leaders the right to reject any
changes to these rules. Thus members on both sides of the partisan divide could proceed
toward a decision without fear that the other side would resort to trickery to get the results
it favored. That the Senate would find a way to manage its disagreements is not surprising.
Its leaders take pride in finding collegial ways of containing the potential conflicts that
daily threaten to disrupt its business.

Reliance on rules and procedures designed to reconcile society’s competing pref-
erences is nothing new. In an era of arbitrary kings and aristocrats, republican political
theorists understood their value. In a 1656 treatise exploring how institutions might
be constructed to allow conflicting interests to find solutions in a more egalitarian way,
English political theorist James Harrington described two young girls who were argu-
ing about how to share a single slice of cake. Suddenly one of the girls proposed a rule:
“‘Divide,’ said one to the other, ‘and I will choose; or let me divide, and you shall choose.’”
At this moment, Harrington stepped away from his story and seemingly shouted to the
reader, “My God! These ‘silly girls’ have discovered the secret of republican institutions.”*
With that ingenious rule, both girls were able to pursue their self-interest (the largest
possible slice of cake) and yet have the collective decision result in a division both could
happily live with.1 This became, for Harrington, a parable about the virtues of bicamer-
alism—a legislature comprised of two chambers with each holding a veto over the other.

More than one hundred years after Harrington’s treatise, the Framers of the
Constitution spent the entire summer of 1787 in Philadelphia debating what new rules
and offices to create for their fledgling government. They were guided by their best
guesses about how the alternatives they were contemplating would affect the interests
of their states and the preferences of their constituencies (Chapter 2). The result of their
efforts, the Constitution, is a collection of rules fundamentally akin to the one discovered

*Actually, Harrington exclaimed, “Mon Dieu!” Note that the lowercase “republican” refers to a form of gov-
ernment and not the (uppercase) Republican Party. The same case distinction applies to “democratic” and the
Democratic Party. Both of these forms of government are examined later in the chapter.

6 The Logic of American Politics

by the girls in Harrington’s story. (Think about it: both the House of Representatives and
the Senate must agree to a bill before it can be sent to the president to be signed into law.)
The events in Philadelphia remind us that however lofty the goal that gives rise to reform,
institutional design is a product of politics. As a result, institutions may confer advan-
tages on some interests over others. Indeed, sometimes one side, enjoying a temporary
advantage, will try to permanently implant its preferences in difficult-to-change rules and
procedures. The present-day Department of Education, for example, arose from the for-
mer Department of Health, Education, and Welfare in 1977 after newly elected president
Jimmy Carter proposed this split as a reward for early support from teacher organizations
that had long regarded a separate department as key to their ability to win increased fed-
eral funding for schools and teacher training. The history of this department bears out
the wisdom of their strategy. Republican Ronald Reagan followed Carter into the White
House with the full intention of returning the education bureaucracy to its former sta-
tus. But before long the cabinet secretary he appointed to dismantle the department
began championing it, as did many Republicans in Congress whose committees over-
saw the department’s activities and budgets. Nearly four decades later, the Department
of Education is entrenched in Washington, and as we found in the introduction, national
education policy has become a central issue for politicians from both political parties.

Constitutions and Governments
All organizations are governed by rules and procedures for making and implementing
decisions. Within colleges and universities, the student government, the faculty senate, staff
associations, academic departments, and, of course, the university itself follow rules and
procedures when transacting regular business. Although rules and procedures go by dif-
ferent names (for example, constitution, bylaw, charter), their purpose is the same: to guide
an organization’s members in making essentially political decisions—that is, decisions in
which the participants initially disagree about what they would like the organization to do.

And what happens when the organization is a nation? Consider the problems: the
number of participants is great, the many unsettled issues are complex, and each partici-
pant’s performance in living up to agreements cannot be easily monitored. Yet even with
their conflicts, entire populations engage in politics every day. Their degree of success
depends largely on whether they have developed constitutions and governments that work.

The constitution of a nation establishes its governing institutions and the set of
rules and procedures these institutions must (and must not) follow to reach and enforce
collective agreements. A constitution may be a highly formal legal document, such
as that of the United States, or it may resemble Britain’s unwritten constitution, an
informal “understanding” based on centuries of precedents and laws. A government,
then, consists of these institutions and the legally prescribed process for making and
enforcing collective agreements. Governments may assume various forms, including a
monarchy, a representative democracy, a theocracy (a government of religious leaders),
or a dictatorship.

7Chapter 1: The Logic of American Politics

Authority versus Power
The simple observation that governments are composed of institutions actually says a
great deal and implies even more. Government institutions consist of offices that con-
fer on their occupants specific authority and responsibilities. Rules and procedures pre-
scribe how an institution transacts business and what authority relations will link offices
together. Authority is the acknowledged right to make a particular decision. Only the
president possesses the authority to nominate federal judges. However, a majority of the
Senate’s membership retains sole authority to confirm these appointments and allow the
nominees to take office.

Authority is distinguishable from power, a related but broader concept that we employ
throughout the book. Power refers to a politician’s actual influence over others whose coop-
eration she needs to achieve her political goals. An office’s authority is an important ingre-
dient, conferring influence—that is, power—to those who enlist it skillfully. For instance,
President Trump has the authority to instruct the Department of Homeland Security
(DHS) to test alternative prototypes for a new and extended wall at the U.S.-Mexican bor-
der. However, he did not appear to have the billions of dollars necessary to actually con-
struct the wall. Appropriations authority rests squarely with Congress—in this instance,
a Democratic House of Representatives that had little interest in accommodating the
president. But then the administration discovered a provision in a military construction
law that authorized presidents to move funds to different projects when “unforeseen” cir-
cumstances arise and Congress had not explicitly denied funding for the project. After the
Supreme Court decided that the administration’s plan fell within its authority, the Trump
administration hurriedly transferred $2.5 billion to the wall project. But the fact that
it could muster only sufficient funds to construct four hundred miles of wall, much of it
replacing sections of the current wall, reminds us that authority rarely assures success.

Institutional Durability
Institutions are by no means unchangeable, but they tend to be stable and resist change for
several reasons. First, with authority assigned to the office, not to the individual holding the
office, established institutions persist well beyond the tenure of the individuals who occupy
them. A university remains the same institution even though all of its students, professors,
and administrators are eventually replaced. Institutions, therefore, contribute a fundamen-
tal continuity and orderliness to collective action. Second, the people affected by institutions
make plans on the expectation that current arrangements will remain. Imagine the conster-
nation of those college students who were packing for their Washington internship when
the pandemic hit, and they discovered that they would serve distantly—in many cases from
their bedroom at home. Or consider the anxiety the millions of workers approaching retire-
ment must feel whenever politicians ruminate about changing Social Security.*

*In his 2005 State of the Union address President George W. Bush sought to reassure the most anxious segment
of the public approaching retirement—specifically, those over age fifty-five—that his sweeping reform proposal
would not apply to them.

8 The Logic of American Politics

Sometimes institutions are altered to make them perform more efficiently or to
accomplish new collective goals. In 1970 an executive reorganization plan consolidated
components of five executive departments and agencies into a single independent agency,
the Environmental Protection Agency, with a strong mandate and commensurate regula-
tory authority to protect the environment. By coordinating their actions and centralizing
authority, these formerly dispersed agencies could more effectively monitor and regulate
polluting industries.

The Political System’s Logic
The quality of democracy in modern America reflects the quality of its governing institu-
tions. Embedded in these institutions are certain core values, such as the belief that those
entrusted with important government authority must periodically stand before the citi-
zenry in elections. Balanced against this ideal of popular rule is the equally fundamen-
tal belief that government must protect certain individual liberties even when a majority
of the public insists otherwise. Throughout this text we find politicians and citizens dis-
agreeing on the precise meaning of these basic beliefs and values as they are applied or
redefined to fit modern society.

Also embedded in these institutions—initially by the Framers of the Constitution and
later by amendment and two centuries of precedents based on past political practices—is a
logic based on principles about how members of a community should engage one another
politically to identify and pursue their common goals. Although the Framers did not use
the vocabulary of modern political science, they intuitively discerned this logic and real-
ized that they must apply it correctly if the “American Experiment” were to succeed.*

For us, too, this logic is essential for understanding the behavior of America’s political
institutions, the politicians who occupy them, and the citizens who monitor politicians’
actions. To that end, the concepts presented in the remainder of this chapter are the keys
to “open up” America’s political institutions and to reveal their underlying logic. We begin
with the problems (or one can think of them as puzzles) that confront all attempts at col-
lective action. Many institutional arrangements have been devised over time to solve these
problems. Those we examine here are especially important to America’s political system,
and the concepts reappear as key issues throughout the book.

Collective Action Problems
By virtue of their size and complexity, nations encounter special difficulties in conducting
political business. In those nations where citizens participate in decisions through voting and

*They were, after all, contemporaries of Isaac Newton and found in his theory of mechanics inspiration to search
for similar natural laws to create a well-functioning polity. With Britain’s monarchy the only real-world model
to guide them—and one they tended to judge more as a model of what to avoid than to emulate—the Framers
depended heavily on carefully reasoned ideas, which took them to Newtonian physics. Consequently, the terms
force, counterweight, and balance were familiarly used during debates at the Constitutional Convention and by
both sides in the Constitution’s subsequent ratification campaign.

9Chapter 1: The Logic of American Politics

other civic activities, still more complex issues arise. Successful collective action challenges
a group’s members to figure out what they want to do and how to do it. The former involves
comparing preferences and finding a course of action that sufficient numbers of participants
agree is preferable to proposed alternatives or to doing nothing. The latter concerns imple-
mentation—not just the nuts and bolts of performing some task but reassuring participants
that everyone will share the costs (such as taxes) and otherwise live up to agreements.

Even when members basically agree to solve a problem or achieve some other collec-
tive goal, there is no guarantee that they will find a solution and implement it. Two funda-
mental barriers—coordination problems and prisoner’s dilemmas—may block effective
collective action. Coordination can be problematic at both stages of collective action—
as members decide to undertake a task and subsequently work together to achieve it.
Coordination in making a joint decision mostly involves members sharing information
about their preferences; coordination in undertaking a collective effort involves effectively
organizing everyone’s contribution. On this second matter, coordination may become
problematic when individual members realize that the success of the collective enterprise
will depend on their contribution, which may be costly. For instance, individual members
may be asked to make a severe contribution such as going to war, and despite their costly
effort, the collective effort might fail.

This fundamental problem introduces a class of issues commonly referred to as the
prisoner’s dilemma. It refers to a variety of settings in which individuals find themselves
personally better off by pursuing their private interests and undermining the collective
effort even when they want it to succeed. Prisoner’s dilemmas pervade all of politics, from
neighbors petitioning city hall for a stop sign to legislators collaborating to strike budget
deals in Congress. These dilemmas especially interest us because the “solution”—that is,
having everyone contribute to the collective undertaking—depends heavily on providing
the kinds of incentives to individuals that governments are well suited to provide.

The size of a group affects its members’ ability to coordinate in achieving an agreed-to-
goal. Here, a classical music performance offers an education in the costs of coordinating
collective action. During a concert, the members of a string quartet coordinate their indi-
vidual performances by spending nearly as much time looking at one another as they do
their own music. Volume, tempo, and ornamentation must all be executed precisely and
in tandem. By the end of a successful concert, the effort required is evident on the trium-
phant musicians’ perspiring faces. A symphony orchestra, by contrast, achieves compara-
ble coordination, despite its greater numbers, by retaining one of its members to put aside
the musical instrument and take up the conductor’s baton. By focusing on the conductor,
orchestra members are able to coordinate their playing and produce beautiful music. And
at the end of the concert, the conductor is the first one to mop a perspiring brow.

Now consider millions of Republican voters in the spring of 2016 trying to decide
who their presidential nominee should be. A national survey in early March found

10 The Logic of American Politics

� FIGURE 1.1 Republican Voters Trying to Coordinate in the Selection of Their Party’s















t f




Trump Cruz Rubio Kasich

Source: NBC/Wall Street Journal poll, March 3–6, 2016, N = 397 Republican primary voters nationwide.

Note: The percentages do not add up to 100 because a few respondents refused to pick either candidate.

30 percent favoring Donald Trump, with Ted Cruz, John Kasich, and Marco Rubio follow-
ing with 27, 22, and 20 percent support, respectively. But this only scratched the surface of
their preferences on what they wanted their party to do. In follow-up questions, the sur-
vey pitted Trump against each of the other candidates in a two-man race. In Figure 1.1 we
find that Trump loses each contest. Clearly, many Republican respondents wanted anyone
but Trump. Teamed with the candidate’s “true” supporters, they might have constituted a
majority. But as primaries and caucuses continued through early June, the coordination
problem persisted. In the end, the “anyone but Trump” Republicans never managed to
pool their efforts to select an alternative candidate.

The challenges to successful coordination increase with size.* Large groups trying to
reach a shared goal might emulate the symphony in designating and following a leader.
Members of the House of Representatives and the Senate configure procedures to enable
Congress to decide policy for the hundreds of issues presented each session. But to achieve
that objective, the 435-member House and the 100-member Senate proceed differently,
following a logic reflecting the size of their organizations. The House delegates to a Rules
Committee the responsibility for scheduling the flow of legislation onto the floor and

*Nonetheless, there are collective action problems for which simple, self-enforcing rules—such as traffic staying
to the right side of the street—might be all that is required.

11Chapter 1: The Logic of American Politics

setting limits on deliberations and amendments. This important committee becomes the
“leader” in setting the body’s agenda. The entire House cedes this authority to a committee
because coordination is vital if the chamber is to identify and pass the most preferred leg-
islation. By contrast, the smaller Senate functions similarly to a string quartet; it achieves
comparable levels of coordination without having to surrender authority to a specialized
committee. In the Senate, the same coordination arises from informal discussions among
members and party leaders.

As we found with the “never Trumpers” plight in 2016, successful collective action
may elude participants when their numbers are very large. This explains why a society’s
collective decisions are generally delegated to a small group of professionals, namely
politicians, who intensively engage one another in structured settings, namely govern-
ment, to discover mutually attractive collective decisions.

Despite the problems presented by a great number of participants, successful mass coor-
dination occasionally succeeds without delegation to politicians or the presence of institu-
tions that channel individuals’ choices. Just as Republicans opposed to Trump searched for
an alternative candidate that they could all support, so too did “never Trump” Democrats
in 2020. But the latter group was more successful. Over the course of the state primaries,
all twenty-three candidates stumbled badly, including the initial front-runner Joe Biden.
Democratic primary voters studied the campaigns to decide not only whose promises
and pledges they personally preferred but even more importantly which candidate other
Democrats appeared most excited about. As Biden’s debate performances and campaign
strengthened—and critically, as voting in Super Tuesday states broke his way—the other
campaigns essentially collapsed overnight. Biden emerged as the clear front-runner.

What allowed the Democrats to coordinate successfully in 2020 and had eluded anti-
Trump Republicans in 2016 was the presence of a highly visible cue that pointed voters
toward where other like-minded voters were headed. Biden’s Super Tuesday victory may
not have persuaded supporters of the other Democratic candidates that Biden’s policies
were wise. Instead, these voters discerned a bandwagon emerging, one capable of taking
them to victory in November. The critical ingredient in their success—and anti-Trump
Republicans in 2016—was the presence of a prominent cue directing them how to pool
their collective efforts. Such a cue is called a focal point.

Internet-based social networks offer levels of focal point coordination unimag-
inable in earlier decades. A remarkable example of nearly spontaneously coordinated
protest activity occurred in 2006, when a Los Angeles union and church organized a
protest march against anti-immigrant legislation under consideration by the House of
Representatives. The organizers hoped to arouse twenty thousand participants, but after
they persuaded several Spanish-radio DJs to publicize the rally, more than half a million
protesters showed up. The size of the turnout amazed everyone, including the organiz-
ers, and the crowd quickly overwhelmed the police force. Clearly, there was a pent-up
demand needing only a cue as to when and where everyone would show up. Since then,
mass demonstrations have become something of the norm. During the 2020 coronavi-
rus pandemic, crowds suddenly show up in a dozen cities on the same weekend to protest

12 The Logic of American Politics

states’ pandemic quarantines. These demonstrations were soon eclipsed by even more
numerous and massive demonstrations against police brutality, after the world watched
a police officer’s casual murder of George Floyd in Minneapolis in May 2020 while three
other officers on the scene did not intervene.

We now turn to potentially more problematic challenges to collective action—the
problems of the prisoner’s dilemma. Unlike a lack of coordination, where mutual igno-
rance prevents participants from identifying and working together for a common goal,
prisoner’s dilemma problems find participants privately calculating that they would be
better off by not contributing to the collective action even when they wholeheartedly
agree with its purpose. Where coordination problems frequently require no more than
direction and information, prisoner’s dilemmas generally necessitate monitoring and the
threat of coercion.

The Prisoner’s Dilemma
Since it was first formally introduced in the late 1950s, the prisoner’s dilemma has become
one of the most widely used concepts in the social sciences. A casual Google search gen-
erated over half a million hits on this phrase, bringing up websites on subjects far afield
from political science and economics (where systematic consideration of the concept
originated), including psychiatry, evolutionary biology, and drama theory. The prisoner’s
dilemma depicts a specific tension in social relations, one long intuitively understood by
political thinkers. Solving this dilemma fundamentally distinguishes political success and
failure and is a cornerstone of our inquiry. What precisely is the prisoner’s dilemma, and
why is it so important for the study of American politics?

The prisoner’s dilemma arises whenever individuals who ultimately would bene-
fit from cooperating with each other also have a powerful and irresistible incentive to
break the agreement and exploit the other side. Only when each party is confident that
the other will live up to an agreement can they successfully break out of the dilemma and
work to their mutual advantage. A simple example of how this works is the original exer-
cise that gives the prisoner’s dilemma its name. In the movie stills from the 1941 drama I
Wake Up Screaming, homicide detectives are subjecting screen legends Victor Mature and
Betty Grable to the prisoner’s dilemma. Specifically, each murder suspect is being advised
to confess and testify against the other, in return for a lighter prison sentence. The dia-
gram on the next page maps out the likely prison term each faces. Deep down Mature and
Grable know that the police do not have enough evidence to convict them of murder. All
they have to do is stick to their story (i.e., cooperate), and, at worst, they may have to spend
six months in jail on a gun possession charge. If both were to confess, each would get a
five-year sentence. Each of them is offered a deal: in exchange for a full confession, the
“squealer” will get off scot-free, whereas the “fall guy” or “sucker” will be convicted and
likely receive a ten-year prison term. In the movie both suspects are isolated in their cells
for a few days, with the detectives hinting that their partner is “singing like a canary.” As
the days pass, each begins to recognize the other’s character flaws and panics. If Mature

13Chapter 1: The Logic of American Politics

squeals, Grable realizes, she must also in order to avoid a ten-year stretch. If, however, she
has underestimated his virtues and he holds out, well, that would be unfortunate, but she
gains some solace in knowing that her lone confession will be her “get-out-of-jail” card.
Of course, Mature, stewing in his cell, reaches the same conclusion. Why this movie pres-
ents a genuine dilemma is that in this setting confessing offers the best outcome for each
suspect, regardless of what the other individual does. So, in the end, they both confess and
spend the next five years in the slammer.*

*For this reason police have traditionally objected to giving suspects early access to lawyers, who might help the
otherwise isolated prisoners coordinate their plan. But this is a different story we return to in Chapter 5. By the
way, the movie offers a happy ending.

Subjected to the classic prisoner’s dilemma interrogation, Victor Mature and Betty Grable turn out to have nothing to confess in
the 1941 whodunit I Wake Up Screaming. Since its introduction in the 1950s, thousands of articles have enlisted this metaphor to
explore the fundamental conflict between what is rational behavior for each member of a group and what is in the best interest of the
group as a whole.
20th Century Fox/Photofest





6 months, 6 months

No jail, 10 years

10 years, no jail

5 years, 5 years

(Grable’s sentence is listed first.)

14 The Logic of American Politics

So what does this dilemma have to do with American politics? Everything. Every
successful political exchange must tacitly solve the prisoner’s dilemma. Exchanges occur
because each side recognizes that it will be better off with a collective outcome rather than
with trying to act alone. Had Mature and Grable somehow managed to stay silent, their
cooperation would have shaved all but six months from their five-year terms. And both
knew this. Yet neither could be sure the other confederate would stay silent. To get some-
thing worthwhile, both sides must typically give up something of value in return. The
moral: unless participants in a collective decision can trust each other to abide by their
commitments, they will not achieve a mutually profitable exchange.

How do the Matures and Grables shift the outcome from that quadrant, where neither
cooperates, to the one where they both do? One solution involves making reneging and
defection very expensive. In some settings this can be achieved informally. For example,
politicians who repeatedly make campaign promises that they subsequently fail to act on
lose credibility with voters and become vulnerable to defeat in the next election. Once in
office, reneging on an agreement will quickly damage a politician’s reputation, and oth-
ers will refuse to deal with her in the future. Where failure to live up to one’s agreements
imposes costs down the road, politicians will think twice before doing so.

Another common solution is to create institutions that help parties discover oppor-
tunities to profit through cooperation and, most important, guarantee that agreements
are honored. Here government’s coercive authority is useful. An anthropologist once
reported that two tribes in a remote region of New Guinea lived in a state of continual
warfare, to the point that many more men from both tribes had died in battle than from
natural causes. The anthropologist summed up their dilemma: “In the absence of any
central authority, they are condemned to fight forever . . . since for any group to cease

defending itself would be suicidal.” He
added that these tribes might “welcome
pacification.” One day the distant govern-
ment in Papua sent a ranger armed with a
handgun to establish territorial boundar-
ies between the tribes and rules govern-
ing their chance encounters. Suddenly,
the decades-long warfare ended. Each
side believed the ranger with his sin-
gle sidearm presented sufficient force to
punish any breaches (defection) of the
peace agreements, and the now-peace-
ful neighbors began to use politics—not
war—to solve their conflicts.2 Members
of a society must be able to engage one
another politically. Without confi-
dence that agreements will be enforced,
the political process quickly unravels.

a. Thomas Hobbes, Leviathan, or The Matter, Forme, & Power of a
Commonwealth Ecclesiasticall and Civill (1651; reprint, Oxford: Clarendon
Press, 1958).
North Wind Picture Archives

15Chapter 1: The Logic of American Politics

Participants will balk at undertaking mutual obligations they suspect their
bargaining partners will not honor.

In his 1651 treatise on the origin and purposes of government, Leviathan, political
philosopher Thomas Hobbes examined the straits to which society is reduced when its
government is unable to enforce collective obligations and agreements. In a famous pas-
sage he warned that life would return to “a state of nature . . . solitary, poor, nasty, brut-
ish and short.”3 The mortality rate of New Guinea tribesmen confirmed Hobbes’s insight.
They were not naturally combative; rather, these tribes simply could not trust each other.
Thus enforcement succeeded in encouraging cooperation, but not through flaunting
overwhelming force or imposing a solution on the contending parties. The ranger’s pres-
ence simply rendered any party’s defection costlier than its compliance.

Hopefully, the relevance of the prisoner’s dilemma to American politics is becoming
clearer. Virtually every policy the government adopts represents a successful resolution
of this dilemma. Constituencies and their representatives cooperate to achieve their sepa-
rate goals—recall our definition of politics earlier—because institutions have developed to
help diverse constituencies discover opportunities for mutual gain through cooperation
and, just as important, to deter them from reneging on their agreements. Like the ranger
with a handgun from Papua, America’s political institutions foster collective action by
solving the prisoner’s dilemma.

There are failures, to be sure. Antitrust laws are designed to prevent competitors in
the marketplace from colluding to fix prices or restrain trade. Shortly after the COVID-19
pandemic shut down the country, an oil glut developed. When Russia and Saudi Arabia
began expanding production to compete over market shares, there was, suddenly, a glut of
oil sloshing around the world. Prices plummeted as oil storage facilities filled up and pro-
ducers resorted to storing their excess supply in oil tankers. Restrained from coordinating
a reduction in production by antitrust laws and the need to service large debts, American
oil producers individually drilled harder hoping that their competitors would cut back.

Other issues simply do not offer mutual gains through cooperation. A zero-sum
game ensues where one party’s gain is the other’s loss. Elections are a classic zero-sum
game. They frequently arise in national politics over controversial issues that cannot be
easily compromised. In such instances, politics may break down and give way to force.
National policy on rights to abortion frequently becomes just such an issue where irrec-
oncilable preferences seek to control policy. Chapter 4 recounts the most intractable issue
of all in American political history—the failure, despite repeated compromise attempts,
to come up with a policy on slavery’s extension into the territories during the 1850s. This
issue was resolved only by the deadliest war of its time.

Even when each side can envision opportunities for mutual gains, American politics is
far from failure proof. Everyone agrees that in several decades the Social Security program
will be unable to keep up current levels of benefits long before the millennial generation
approaches retirement. Both Republicans and Democrats in Washington want to fix it,
and from time to time one side will gingerly make an overture to the other. But all of the
solutions are costly or otherwise unpopular, either requiring hefty new taxes or curtailing

16 The Logic of American Politics

benefits. Both political parties worry that as soon as they offer a tough solution, the other
side will exploit it to score points in the next election. Until politicians figure out a way to
cooperate and share the blame, Social Security reform will remain the proverbial “third
rail” of politics: “Touch it and you are dead.”*

Free-Rider Problem

A form of the prisoner’s dilemma that afflicts large groups is the free-rider problem.
Whenever an individual’s contribution to the success of the collective effort is so small as
to seem inconsequential, one will be tempted to free ride—that is, fail to contribute to the
group’s undertaking while enjoying the benefits of its success. Even those who enthusiasti-
cally support the group’s goal realize that they can escape fulfilling their obligations. When
the motivation to free ride is a serious possibility, several outcomes are possible.

First, it may stymie collective action altogether. Just knowing that the other partici-
pants might free ride may dissuade those ready to pony up their share of money or effort
from doing so. If many people react this way—and many do—and suspect their neighbors
of doing so as well, too few contribute to the collective effort, and, thus, it fails. During
Barack Obama’s 2008 presidential campaign, “get out the vote” operatives discovered that
organizing volunteers into groups of more than ten reduced the group’s success in contact-
ing prospective voters. Instead of crusaders making a difference, they felt like “numbers
on a spreadsheet.” A lot of them dropped out of the campaign. Having learned this lesson,
in 2012 the Obama campaign organized volunteers into smaller teams where they could
more easily see their contribution making a difference. As a result, the campaign’s voter
contact efforts proved more successful.4

A second possible outcome arises when the collective undertaking will benefit some
participants more than others. When those who have a small stake in the outcome dis-
cern that one or several other participants will derive so much value that they would be
prepared to absorb the full cost of the undertaking, the setting is ripe for free riding. But in
this case, the collective enterprise is still successful. This is the dilemma the United States
has grappled with unsuccessfully over the years in trying to persuade our NATO partners
to contribute their agreed-to resources—a contribution equal to 2 percent of the coun-
try’s GDP—for their common defense. In Figure 1.2 we find that only five countries have
matched or exceeded their allocated share. Some, such as Canada, have cut their contri-
butions sharply over the past several decades. Every president has complained about this
at NATO gatherings, but President Trump is the first to threaten to pull the United States
out of NATO and by doing so, prompted our allies to acknowledge the current imbalance.
(Trump’s relentless jawboning of our allies apparently worked to the extent that all but two
members had modestly increased their share of GDP committed to NATO.)†

*The third-rail metaphor refers to the third rail of subway tracks, the one that carries the electricity.
†Mancur Olson, who introduced free riding to generations of scholars beyond economics, referred to this set-
ting as the “tyranny of the great by the small.”

17Chapter 1: The Logic of American Politics

� FIGURE 1.2 Defense Expenditures of NATO Countries, 2017











Military spending (millions of U.S. dollars)

Estimated share of GDP (percent)





Slovak Republic

Czech Republic



United Kingdom
United States








Source: Adapted from NATO, “Defence Expenditure of NATO Countries (2010–2017),” March 15, 2018.

Note: Gross domestic product is one of the most commonly used benchmarks of nations’ wealth.

From the first two scenarios we see that individuals’ contributions to a collective
enterprise is calculated, even when everyone agrees that the collective good is well worth
pursuing. Successful collective action in most settings requires an organization that can
monitor and where necessary intervene to induce individuals’ contributions. These orga-
nizations may be either private or the government. One advantage the latter enjoys is the
use of force. Immediately after the United States declared war on Japan after the attack
on Pearl Harbor, thousands of patriotic young men rushed to army and navy recruiters.
In case they did not, however, Congress passed a draft law. One of the most controversial

18 The Logic of American Politics

features of the national health care law enacted in 2010 was the requirement that everyone
sign up for health care insurance. Failing to do so would result in an extra tax added to the
individual’s income tax to contribute to these premiums. Clearly the intuition behind the
mandate was that in a setting where no one could be denied insurance coverage, many
people would wait until they got sick to sign up. In a sense they would free ride—that is,
not contribute to the overall financing of the program—but avail themselves of the collec-
tive good whenever they liked.*

For many voluntary associations, this strategy is unavailable. With about 10 percent
of its regular viewers donating to their local PBS affiliates, the Public Broadcasting System
requires an annual government subsidy to stay in business. Given the logic of nonpartic-
ipation, why does anyone ever contribute to a collective enterprise? Clearly some people
find certain activities intrinsically rewarding, however minor their contributions. That
said, most of the people, much of the time, are inclined to free ride. If a collective effort is
to succeed, it must provide potential participants with a private inducement.

Labor unions represent a class of voluntary organization that has been particularly
susceptible to free riding. Whether in following the organization’s call to strike or sim-
ply in paying monthly union dues, unions grapple with workers who want the benefits of
the unions’ collective effort without having to pay the fees or endure the pain of a strike.
Traditionally, the Republican Party in Washington and across state capitals has sym-
pathized with workers inclined to free ride by passing “right-to-work” laws forbidding
enforced union membership. In 2018, the Supreme Court ruled that required union dues
for public employee workers—the largest groups are teachers and service employees—vio-
lated workers’ First Amendment free speech right (we return to the modern understand-
ing of this civil liberty in Chapter 5). The ruling directly affects the nation’s largest union,
the National Education Association (NEA), which announced that it expected to lose more
than two hundred thousand of its 3 million teacher members during the first year alone.5
To stanch teachers’ temptation to free ride, the NEA offers members a number of selective
benefits such as a million dollar liability policy and legal support in supervisory hearings.

The Tragedy of the Commons

Another distinctive and important form of the prisoner’s dilemma is the tragedy of the
commons. It resembles free riding in that the provision of a collective good is divorced
from its consumption. Where free riding emphasizes efforts of individuals to shirk their
contribution, tragedy-of-the-commons problems concentrate on individuals’ costless
consumption of a public good (the “commons”) that results in its ruination. Having a large
number of participants encourages each to renege on contributions to the public good.
The chief difference is that the good already exists and will be destroyed if its exploitation
is not brought under control.

*In 2017, Congress rescinded this unpopular mandate, putting the Affordable Care Act on a less secure financial

19Chapter 1: The Logic of American Politics

This dilemma takes its name from another instructive allegory. A number of herds-
men graze their cattle in a common pasture. Gradually, they increase the sizes of their
herds, destroying the pasture and with it their livelihood. With each herdsman reason-
ing that adding one more cow to the herd will increase his income while having negli-
gible impact on the pasture, they all add cattle, and do so repeatedly. The end result is a
disaster—eventually, overgrazing strips the pasture of fodder, the cows starve, and the
herdsmen go broke.

A real-world analogy is the collapse of the cod fishing industry off New England.
Entire communities based their economies on fishing cod in nearby waters, but so many
fishermen exploited this resource, without allowing nature to replenish it adequately, that
they managed to wipe out the fishery on which their jobs depended.6 In that wearing a
mask during the COVID-19 pandemic offers less protection for the wearer than it does
for those who come into contact with the wearer, a mask-wearing mandate protects the
environment—the commons—from COVID-19 contamination.

Where virtually all examples of tragedy-of-the-commons dilemmas emphasize the
inability of individual actors to work together to protect a shared resource, here is a recent
example of the government relaxing environmental regulations and opening up this com-
mons (i.e., clean air) to individuals’ use. In the fall of 2018 the Environmental Protection
Agency (EPA) proposed a new regulation that would return to the states authority to

A classic tragedy-of-the-commons scene: too many boats chasing too few fish, not because the skippers are greedy but because in
the absence of an agreement, none can afford to stop fishing and surrender the harvest to others. Here, ships collide at an opening
of the Sitka Sound herring fishery as they compete to catch the remaining tons of herring left in the year’s quota.
AP Photo/Daily Sitka Sentinel, James Poulson

20 The Logic of American Politics

oversee energy production of coal.
The coal industry would love this
change because every state adminis-
trator would be tempted to free ride
by issuing lax use permits out of sus-
picion that the other state regulators
are. Because one state, acting alone,
can achieve little by way of protect-
ing the environment, it might as well
reap the same benefits for its coal

The trick to avoiding the tragedy
of the commons lies in proper insti-
tutional design. As with free riding,
the solution links the individual’s
personal interest to provision (in this
instance, preservation) of the collec-
tive good. A decision to squander or
conserve resources must somehow
be made to affect each participant’s
personal welfare. One solution is

regulation—setting up rules limiting access to the common resource and monitoring and
penalizing those who violate them. But enforcement can be costly because individuals will
be tempted to exploit the collective good if they see their neighbors and colleagues flout-
ing the rules.

In many settings, a less costly and more effective alternative solution to conserving
the commons is to privatize it—that is, converting it from a collective good to a pri-
vate good. After a second straight disastrous harvest in 1622, the residents of Plymouth
Plantation found themselves as close to starvation as at any time since their arrival on the
Mayflower. In desperation, the community’s leader, William Bradford, announced an end
to communal farming. He divided the acreage into family plots and left each family to
provide for itself. This ended the famine. As one historian noted, “The change in attitude
was stunning. Families were now willing to work much harder than they had ever worked
before.”7 After instituting the reform Bradford observed, “The women now went willingly
into the field and took their little ones with them to set corn.” Similarly, confronted with
decreasing stock, modern fishery management has increasingly switched from regula-
tions (i.e., catch quotas) to privatization by granting fishermen exclusive access to parts
of the ocean in the hope that this will motivate them to harvest prudently. Whether regu-
lation or privatization, the solution involves aligning personal gain with promotion of the
collective good.

Proposed redesigned coal pollution regulatory regime.
TOLES © 2018 The Washington Post. Reprinted with permission of ANDREWS MCMEEL
SYNDICATION. All rights reserved.

21Chapter 1: The Logic of American Politics

The Costs of Collective Action
Collective action offers a group benefits that its members cannot achieve on their own.
But participating in a collective enterprise also entails various costs. The key to successful
collective action lies in designing a system that achieves the benefits of a collective effort
while minimizing its costs. For example, the Senate, with its 100 members, efficiently
accomplishes its business with fewer and less restrictive rules than those required for the
much larger 435-member House of Representatives.

Some of the costs associated with collective enterprises are not hard to spot. An obvi-
ous one is each person’s monetary contribution to an enterprise—for example, tax pay-
ments funding road construction or staffing of a police department. Less obvious are the
“overhead” costs of enforcing agreements, such as the ranger’s salary in New Guinea or the
costs associated with the judicial system and the lawyers needed to ensure that those who
enter into business agreements live up to their contracts. Overhead costs also include the
government’s effort to combat free riding. If people were not inclined to free ride, the fed-
eral government could disband the large bureaucracy that goes after tax cheats.

Two kinds of costs especially relevant for designing and evaluating institutions are
transaction costs and conformity costs. Though they represent separate aspects of how a
community tackles collective enterprises, they often involve a trade-off with each other.
In creating institutions to achieve desirable collective goods, a society should collectively
weigh the balance between members’ private autonomy and the requirements for achiev-
ing the collective good.

Transaction Costs
Transaction costs are the time, effort, and resources required to make collective deci-
sions. Consider a student activities committee that selects which band to bring to cam-
pus. First, do students want rock, hip-hop, or some other kind of music? Then, what
bands are available, how good are they, and what do they charge? Of course, unsatisfac-
tory answers to the second set of questions might return the committee to the first. Once
a decision has been made, the bands must be contacted, dates and prices negotiated, and a
venue found. The time and effort spent researching available bands, debating preferences,
and implementing decisions are all transaction costs of the collective good of campus

Transaction costs can pose a formidable barrier to political agreements. These
costs rise sharply as the number of participants whose preferences must be taken into
account increases. In the absence of institutions for negotiating and implementing col-
lective agreements, these costs might overwhelm the ability of participants to identify
with and commit themselves to collective enterprises. With well-designed institutions,
however, agreements become easier to make. In the previous example, the student body

22 The Logic of American Politics

greatly reduced its transaction costs by authorizing a committee to make a collective
choice for it.

Sometimes, though, high transaction costs are intentionally put in place to make some
collective activities more, not less, difficult. Having fashioned a delicately balanced plan
of government, the Framers were understandably uninterested in making it easy for some
group down the road to rewrite the Constitution. Indeed, the prospect that their labors
might soon be undone could have prevented them from reaching agreement in the first
place. The Framers ratcheted up the transaction costs of future constitutional change.
A proposed amendment to the Constitution must be endorsed by two-thirds of the
membership of both houses of Congress and ratified by three-fourths of the states.*

Conformity Costs
In negotiating a common course of action, parties advocating competing interests rarely
discover that they want precisely the same thing. Politics invariably means compromise.
Most of the time there are losers—parties whose preferences receive little accommodation

*Alternatively, two-thirds of the state legislatures can ask Congress to call a national convention to propose
amendments, but this has never been done.

Cedarville, California, is part of Modoc County, a rural county of fewer than nine thousand people. For the first
six months of the pandemic, this tiny county had not registered its first positive test. While the pandemic raged
throughout most of the state, precipitating massive business shutdowns and closed schools, Modoc largely
ignored state orders and practiced its normal social distancing.
AP Photo/Jeff Barnard, File

23Chapter 1: The Logic of American Politics

but who must still contribute to a
collective undertaking. To the extent
that collective decisions obligate
participants to do something they
prefer not to—and all resolutions
of the prisoner’s dilemma involve
this—we refer to this necessity as a
conformity cost. Conformity costs
range from mundane obligations,
such as wearing a facial mask during
the pandemic, to extraordinary sac-
rifices, such as serving overseas in
the military. Rules that require fish-
ermen to stay at the dock during a
portion of the fishing season, rules
that make a citizen spend part of her
income to fund government pro-
grams she opposes, and rules that
limit the time allotted to a member
of Congress for a floor speech all
impose conformity costs on individ-
uals to achieve a collective goal. Not
surprisingly, members of a commu-
nity prefer minimum conformity
costs. But because collective goals never come effortlessly, elected representatives must
continually weigh what kinds of and how much costs its citizens are prepared to bear for a
particular good. Failure to do so, as Democrats discovered in the 2010 congressional elec-
tions shortly after passage of comprehensive health care policy, could find them ushered
out of office.

In that transaction and conformity costs generally entail a trade-off, those institutions
that minimize transaction costs, making it easy to act, may do so by imposing excessive
conformity costs. An extreme case would be a dictator who arbitrarily decides national
policies (minimal transaction costs) by insisting that everyone do what he, not they, prefers
(maximum conformity costs). At the opposite end of the continuum would be government
by consensus. The group does nothing unless everyone agrees to it. Of course, govern-
ments based on consensus often have a difficult time undertaking any collective enterprise,
although they expend great effort (exorbitant transaction costs) discovering this.

Perhaps the best way to appreciate the trade-off of these costs is to play the following
mind game: you’ve accumulated $40,000 and are ready to fulfill your lifelong dream to
climb Mount Everest. One of the first (and probably most consequential) choices you have
to make is selecting an expedition to sign up with. With about eight hundred soul mates

Not just another lawyer joke. . . . Clearly the guards prefer the high conformity costs
imposed by this hapless leviathan to the transaction costs of more democratic
Frank Cotham/The New Yorker Collection/The Cartoon Bank

24 The Logic of American Politics

trekking toward the summit each year, you have some choices. Do you sign up with an
expedition whose leader has the reputation as a real taskmaster? This seasoned, grizzled
veteran rarely, if ever, pays customers’ opinions any regard and brooks no dissent. A real
dictator. Or do you opt for an equally experienced but more solicitous leader—someone
who shares decisions with the group and values their input? (Note how these hypothetical
expeditions opt for different mixes of conformity and transaction costs.) Back to the deci-
sion: which group do you sign up with? Recent research on this subject suggests that your
answer should depend on your priority. If above all else you want to reach the summit,
go with the dictator. Statistics show that over the years, the more hierarchically organized
expeditions have greater success in reaching the top. If, however, survival is a higher prior-
ity, go with the more democratically organized expedition. Fewer members of these teams
die along the way.8

These extreme mixes of transaction and conformity costs might seem far-fetched
when referring to political choices we and our leaders commonly confront. To insist that
customers wear a protective mask while shopping, to require those who fail to enroll
in medical insurance to pay a surcharge on their taxes, and to allocate water rights for

Climbers make their way toward the peak on Mount Everest. Those who want to summit Everest must
calculate both transaction and conformity costs in selecting the guide to get them there, from the dollar
expense to leadership style. Data show that more hierarchically organized expeditions have a greater success
rate in reaching the top.
STR/AFP via Getty Images

25Chapter 1: The Logic of American Politics

drawing water from a common aquifer are just a few of the controversies that require an
individual to conform to generate a collectively desirable outcome.

More commonly, governmental reform occurs within a narrow range of trade-offs
between transaction and conformity costs. Rules, procedures, and resources are fre-
quently changed to reduce transaction costs and make government more efficient and
decisive. But sometimes the opposite scheme is adopted to prevent abuses. After the civil
rights movement and the Vietnam War era, scandals uncovered widespread abuses by the
Federal Bureau of Investigation and Central Intelligence Agency in spying on civil rights
activists (including Martin Luther King Jr.) and antiwar leaders. Congress enacted pro-
cedures requiring judicial approval before these investigative agencies could undertake
wiretaps and other forms of intrusive surveillance of citizens. Such reforms to prevent
abuses were adopted with little opposition in Washington and represent a classic instance
of increasing transaction costs as a way to hamstring action—in this instance, action
taken against those who opposed current government policies. Over the objections of law
enforcement officials, the government decided to preserve individuals’ freedom of dis-
sent (reduce conformity costs) by jacking up transaction costs on law enforcement offi-
cials. After September 11, 2001, the balance shifted back to reducing the transaction costs
involved in going after potential terrorists (via the USA PATRIOT Act), and conformity
costs increased.

Representative Government
Modern democracies blend delegation with majority rule into what is known as represen-
tative government. Citizens limit their decisions to the selection of government officials
who, acting as their agents, deliberate and commit the citizenry to collective enterprises.
This form of democracy eliminates the massive confusion that would ensue if large com-
munities tried to craft policies directly, and it frees most citizens from having to attend
constantly to civic business. For a large group or society, representative government,
through delegation, makes large-scale democracy possible. Direct democracy, in which
citizens participate directly in collective decision-making, is reserved primarily for small
communities and organizations.*

At the time of the adoption of the U.S. Constitution, the idea of majority rule was con-
troversial. The ancient city-state of Athens, one of the few experiments with democracy
known at the time, had ended ignominiously in mob rule and ultimately dictatorship.

*Another approach to direct democracy that is adapted to a large electorate is the referendum. Nearly half
the states allow the legislature to propose a change to the state’s laws or constitution, which all the voters sub-
sequently vote on. An alternative and even purer form of direct democracy is the initiative, which places a
proposal on the ballot when the requisite number of registered voters have signed petitions to place the issue
on an election ballot.

26 The Logic of American Politics

The eighteenth-century political theorists who influenced the Constitution’s Framers
endorsed a form of government called a republic, designed to allow some degree of pop-
ular control and also avoid tyranny.9 The Framers designed the new Constitution to pose
formidable transaction costs on collective action. The Framers especially favored some
form of veto or “check” of one institution over another. In a republic, voters elect their rep-
resentatives, but these representatives are constrained in following the majority’s dictates
by constitutional guarantees for minorities and by institutions and rules requiring excep-
tionally large majorities for certain decisions.

The notion of an independent, unelected judiciary challenges the paramount demo-
cratic principle of majority rule, but it presents no problem for the republican creed. By
ratifying the Constitution and retaining the power to amend it, the people may choose to
set up an institution independent of the others and unconcerned with short-term swings
in public opinion to referee the political process and preserve the values on which the
government is founded. In short, republican theorists, who had the allegiance of virtually
everyone attending the Constitutional Convention in 1787, really believed in the role of
institutions in reaching and preserving agreements. And by making some collective deci-
sions more difficult than others, the Framers consciously built in higher transaction costs,
even if they did not use those terms.

� FIGURE 1.3 Comparing the American and British Constitutional Systems



U.S. Presidential



House of


House of

Voters Voters

27Chapter 1: The Logic of American Politics

Since the American Experiment was launched over two hundred years ago, experi-
ence with majority rule throughout the world has proved that it is a viable approach to
self-governance. Although constitutions written in the twentieth century—such as those
in France and Germany—may still divide authority in ways that allow their countries to be
referred to as republics, they do not include the elaborate rules and institutions designed
to constrain majority rule by ratcheting up transaction costs in the American system.
Instead of separating the executive from the legislature, most of the world’s modern
democracies have fused them in parliamentary government. Many varieties of parlia-
mentary government exist, but they all lodge decisive authority in a popularly elected leg-
islature, whose actions are not subject to the same severe checks by executive and judicial
vetoes. The legislature in turn elects a team of executives called a cabinet, one of whose
members serves as the premier or prime minister (refer to Figure 1.3). This system pro-
motes majority rule in the sense that the political party or coalition of parties that controls
the legislature controls the executive. In effect, parliamentary systems are able to forgo the
higher transaction costs embedded in the U.S. Constitution’s separation of powers. At the
same time, as the majority gains the capacity to act on its preferences, those who disagree
are obliged to accept the majority’s preferences.

The Work of Government
Given the variety of costs and risks associated with collective action, Americans weigh
such undertakings carefully. Among other things, they calculate whether the prospective
gains from a collective public effort are sufficiently greater than what they could achieve
privately. The vast majority of these calculations favor private action, perhaps explaining
why much of what Americans do and consume as individuals has little or nothing to do
with government. Their homes, cars, clothes, food, and sources of entertainment fall into
a realm called private goods—that is, things people buy and consume themselves in a
marketplace that supplies these goods according to the demand for them.

What we discuss in this book is the provision of public goods, which everyone par-
ticipates in supplying—say, through tax dollars—and which anyone can freely consume,
as much as he or she desires. Stated another way, the two distinguishing features of all
public goods are that their costs are borne collectively and that no one can be excluded
from their benefits. An example of a public good is a freeway, which, as its name
implies, may be used by anyone. A toll road is a private good because its costs are met
by the motorists who pay a fee (toll) for its use. A quintessential public good is national
defense. However, in the early 1950s, at the beginning of the Cold War, some fearful
homeowners took a “private goods approach” and installed backyard bomb shelters to
use in the event of nuclear attack. They were eventually abandoned as just about every-
one accepted the logic of relying on national defense—a public good—to protect them
from nuclear assault.

28 The Logic of American Politics

Citizens frequently look to government to provide positive public goods: national
defense, public order, a legal system, civil liberties, and public parks. They also count on
government to prevent or correct negative public goods such as laws controlling pol-
lution; protecting endangered species; and establishing residential, commercial, and
industrial zones. For these tasks, the government enjoys two important advantages: it
has sufficient resources to undertake expensive projects, and it has coercive authority
to prevent free riding. Many public goods simply could not be produced any other way.
Congress appropriated billions of dollars to the development of a COVID-19 vaccine.
Other goods offer better value when converted from a private to a public good. The his-
tory of fire protection in America is one example. In colonial times property owners paid
private fire brigades, but frequently the firefighters never got the word that one of the cus-
tomers needed urgent help. Shifting responsibility to local governments meant that one
entity was responsible for putting out all fires.

Another large class of goods and services has a “public good” aspect that justifies the
collective provision of essentially private benefits. Earlier we examined a class of mixed
policies where government privatizes the “commons” in order to conserve it. Federal
and state tax codes are complicated because many of their provisions are intended not to
raise revenue but to motivate the public to contribute to some collective policy goal. Tax
deductions or credits for charitable contributions, for contributions to personal retire-
ment accounts, for installing solar heating, for restoring historic homes, and for invest-
ing in new equipment are just a few of a long list of federal incentives promoting some
collective good.

In reality, most of the goods and services
that governments provide cannot be eas-
ily sorted into either the private or the public
bin. Public education is a classic example. A
well-educated citizenry undeniably strength-
ens the civic and economic life of a society, but
public education also bestows substantial pri-
vate benefits on students and educators. The
immediate beneficiary of a flu vaccination is the
person who received it. But so too is everyone
with whom he or she comes into contact, even
if only by pushing the same elevator button.
Because the work of modern governments typ-
ically belongs in this class of mixed goods, pub-
lic policy is frequently referred to as dealing in

collective goods. Throughout our discussion, we will use this less restrictive term that
includes both true public goods and mixed policies that also confer private benefits (refer
to Figure 1.4).

� FIGURE 1.4 Several Types of Goods


Collective Benefits Private Benefits


29Chapter 1: The Logic of American Politics

Conclusion: Collective Action and
America’s Constitution
The Constitution’s Framers, who assembled in Philadelphia during the summer of 1787,
did not use the modern vocabulary of collective action problems, such as prisoner’s
dilemma or tragedy of the commons. Yet they were intimately preoccupied with the collec-
tive action issues that afflicted society and overwhelmed the capacity of the nation under
the Articles of Confederation to solve them. Although they sometimes disagreed on the
design of the new government, delegates to the Philadelphia Convention all understood
that the nation’s previous failures stemmed from weak institutions. Citizens and state gov-
ernments engaged in rampant free riding, and politicians failed to honor commitments
because the institutions made reneging easy and cooperation risky. Americans were
trapped in the same fundamental prisoner’s dilemma that ensnared Victor Mature and
Betty Grable. The Framers undertook the enormous task of refashioning the nation’s gov-
ernmental system, knowing that the survival of the republic was at stake.*

To solve the nation’s pervasive collective action problems, the Framers designed a new
government that, by modern standards, minimized conformity costs. Separation of pow-
ers, staggered legislative terms, an unelected judiciary, authority reserved to the states, and
the other features explored in the chapters that follow all effectively constrain majority
rule. The most appropriate place to begin our examination of modern American politics
and apply the concepts presented here is at the reorganization of the entire government,
and so in Chapter 2, we turn to the founding of the republic.


authority 7
bargaining 3
bicameralism 5
cabinet 27
coalition 27
collective action 9
collective goods 28
compromise 3
conformity costs 23
constitution 6

coordination 9
direct democracy 25
focal point 11
free-rider problem 16
government 6
initiative 25
institutions 6

design 6
offices 7

government 27

politicians 11
politics 3
power 7
preferences 3
prisoner’s dilemma 9
private goods 27
privatize 20
public goods 27

*Rival nations abroad also knew that U.S. survival was at stake and tried to pry the nation apart by pitting states
against one another in bidding for trade agreements that would weaken and eventually destroy the national union.

30 The Logic of American Politics


Safire, William. Safire’s New Political Dictionary.
New York: Ballantine Books, 1993. Arguably, Safire
understood the American version of English better
than any other modern popular writer. Fortunately,
the former presidential speechwriter also had an
especially keen eye for politics.

Stanley, Harold W., and Richard G. Niemi.
Vital Statistics on American Politics, 2009–2010.
Washington, DC: CQ Press, 2009. If the text does

not satisfy your appetite for tables and figures,
this book, filled with well-organized data about
American politics, will.

Tocqueville, Alexis de. Democracy in America.
Many good paperback translations of Tocqueville
are available, but beware of abridged versions in
which, invariably, the lively asides and incidental
observations are lost.


1. Why can’t we solve our disputes through simple
bargaining all the time? What factors under-
mine bargaining in different settings? What can
people or governments do to help solve disputes
despite these factors?

2. What sorts of institutions are commonly used
to manage conflicts in societies? What are
some examples of where these institutions have

3. In what ways are challenges to today’s gov-
ernment a consequence of collective action

4. In what ways is the parliamentary system of
representative government designed to work
with fewer transaction costs than the U.S. presi-
dential system?

5. What are some examples of public and private
goods that you have consumed today? How did
you acquire them?

referendum 25
regulation 20

government 25

republic 26
separation of powers 27
tragedy of the commons 18

transaction costs 21
tyranny 26
zero-sum game 15

STR/AFP via Getty Images

During the early days of the coronavirus pandemic shutdown, a protester holds a copy of the Constitution as he drives in protest to
call on the state to lift the stay-at-home order and reopen the economy.
Drew Angerer/Getty Images


The Constitution2

• The Constitution has not changed much over the past two
hundred years. Were the Framers really geniuses, or are
Americans simply very lucky?

• Why is the U.S. Constitution so complicated, where even the
word majority has several meanings?

• How can the United States call itself a democracy when so
many features of its national political system are designed to
frustrate majority rule?


2.1 Describe how the colonies’
experience in self-government
contributed to their willingness
to revolt.

2.2 Explain how the challenges
of collective action under
the Articles of Confederation
undermined early American

2.3 Describe the Framers’
early debates during the
Constitutional Convention.

2.4 Summarize the key features of
the Constitution.

2.5 Identify the issues the
Founders considered when
drafting the Constitution.

2.6 Discuss the debates over
ratification of the Constitution.

2.7 Summarize the influences of
Federalist Nos. 10 and 51 on
the underlying theory of the

2.8 Define the five design
principles that contribute to
the framework and functions of
our government.

2.9 Discuss how the Constitution
put mechanisms in place
that allowed subsequent U.S.
political development to lead to
the nationalization of American

The year 1780 was a disastrous one for the American Revolution.
Three years into the war the Continental Army, the revolutionary
fighting force, teetered on total collapse. In May an entire
garrison of five thousand men surrendered to the British at
Charleston, South Carolina. In late summer, across the state in
Camden, nearly nine hundred Continental soldiers were killed,
and one thousand were taken prisoner in a single engagement.
When the army regrouped, only seven hundred of the original
four thousand men showed up. The fall brought no respite from
the army’s woes. Indeed, the young nation learned that one of its
few illustrious military commanders, General Benedict Arnold,
had switched sides; his name became a byword for treason.

By the end of 1780, General George Washington’s American forces
had shrunk from twenty-six thousand to fifteen thousand. New
Year’s Day 1781 saw even further deterioration in the campaign—
thirteen hundred mutinous Pennsylvania troops, camped in
Princeton, New Jersey, demanded Congress give them a year’s
back pay and an immediate discharge. A congressional committee
met the soldiers outside Philadelphia and agreed to some of their

Although all of these difficulties appeared to stem from unfit
commanders or unwilling troops, the real problem was the

34 Part I: The Nationalization of Politics

fledgling national government, the Continental Congress. It simply was unable to act
decisively or rapidly because all matters of consequence (such as taxes) required the
approval of all the state governments. And it had virtually no administrative apparatus
to implement policy, even those that enjoyed unanimous support. As a result, members
of congressional committees sometimes found themselves deadlocked over how
many uniforms the army needed. Long into the war the army remained underfed, ill
clothed, poorly armed, unpaid (at least in currency of value), and despised by civilians
uncompensated for requisitioned supplies. The troops struggled just to survive as a
unit. Ultimately, of course, this depleted army had to confront the well-equipped British
on the battlefield. During the winter of 1780, General Washington desperately exhorted
Congress, “Where are the Men? Where are the provisions? Where are the Cloaths?”

The bitter irony was that many of the desperately needed provisions existed in ample
supply. The war caused shortages, but they were not severe enough to account for the
deprivations hampering the army. Nor was the problem the strictly logistical exercise
of keeping a traveling army supplied. Despite the difficulty of that task, British troops
and their German mercenaries were reasonably well provisioned. Undermining the
Revolution’s cause was an epidemic of free riding by Americans—from political leaders
to ordinary soldiers. States agreed to contribute money and supplies but failed to do so
in a timely fashion, if at all. Contractors, paid with a currency that was losing about 10
percent of its value every month, sold the American army spoiled food, shoddy clothing,
and poorly manufactured arms, and then shortchanged the Continental Army even on
those inferior provisions when the suppliers thought they could get away with it. Many
recruits enlisted, received their requisitions, and then deserted with their new booty.

Although all of the politicians, merchants, and soldiers involved in the war effort may
have been patriots, they were unprepared to shoulder the costs of serving the public
good while their neighbors and colleagues conspicuously shirked the same duties. If, as
we argued in Chapter 1, the enforcement of contracts and other collective agreements
is the fundamental responsibility of government, then we must blame ineffective
government for the free riding and other shirking that sap a community’s will to achieve
its collective goals. General Washington understood the problem and warned darkly
that if the Continental Congress did not soon take charge, “our Independence fails, [our
government] will be annihilated, and we must once more return to the Government of
Great Britain, and be made to kiss the rod preparing for our correction.”1 Over the next
year Washington continued to endure the government’s ineptitude, narrowly avoiding
a catastrophic military defeat. Then, with time, the Revolution gained credibility abroad.
France, England’s archrival, agreed to loan Congress money to continue the war effort and,
finally, to commit French naval and land forces to the battlefield. On October 17, 1781, the
collaboration paid off with a decisive victory at Yorktown, Virginia, which ended the war.

35Chapter 2: The Constitution

The year 1783 brought a formal end to the hostilities and independence for the American
colonies. But the young nation, still saddled with a government that could not act, was
confronted with many of the same problems it had labored under during the Revolution.
Indeed, many observers feared that independence, won in war, would soon be lost in
peace as the nation threatened to unravel into thirteen disputatious nation-states.

In the summer of 1787 fifty-five delegates from all the states except Rhode Island
assembled in Philadelphia to consider revising the nation’s constitution, known as
the Articles of Confederation. (Content with the Articles, the citizens and politicians
of Rhode Island feared correctly that their small state would lose influence under any
reforms.) General Washington, presiding over this convention, and the twenty other
delegates who had served under him in the field, knew firsthand the failings of the
current government. The rest of the delegates similarly drew on their varied governing
experiences, some stretching back into the colonial era, as they worked together first
to revise the Articles and then to formulate an entirely new constitution. How did these
delegates use their experience and their familiarity with the new nation’s struggle to
solve the problems inherent in collective action? A closer look at the events leading
up to the Constitutional Convention and the creative process it spawned reveals the
thinking that gave birth to America’s constitutional system (covered in Table 2.1).

TABLE 2.1 Countdown to the Constitution


1750s French and Indian War (1754–1763)
drains the British treasury

Albany Congress calls for colonial unity (1754)

1760s Stamp Act enacted by British Parliament

Stamp Act Congress attended by delegates from nine of
the thirteen colonies (1765)

1770s Tea Act (1773)

British adopt Coercive Acts to punish
colonies (1774)

Battles of Lexington and Concord (1775)

Thomas Paine’s Common Sense (1776)

Boston Tea Party (1773)

First Continental Congress rejects plan of union
but adopts Declaration of American Rights denying
Parliament’s authority over internal colonial affairs (1774)

Second Continental Congress assumes role of
revolutionary government (1775); adopts Declaration of
Independence (1776)

Congress adopts Articles of Confederation as
constitution for new government (1777)


36 Part I: The Nationalization of Politics

The Road to Independence
Geographically, America was well situated to be the first nation to break with monarchy
and embrace republicanism; distance limited Britain’s capacity to govern the colonies—a
problem that gained painful significance during the Revolutionary War. Beginning
early in the colonial era, Britain had ceded to Americans responsibility for managing
their domestic affairs, including taxation. The colonists enjoyed this home rule, and the
British also found it agreeable. After all, Britain’s first concern was to control America’s
foreign commerce, thereby guaranteeing itself a market for British manufactured goods
and a steady supply of cheap raw materials. Thus, for more than a century before indepen-

dence the colonists had routinely elected
their own leaders and held them account-
able for local policies and taxes. Breaking
with Great Britain may have been emo-
tionally wrenching for many Americans,
but unfamiliarity with self-governance
was not a factor in their hesitancy to seek

A Legacy of Self-Governance
The first colonial representative assembly
convened in Virginia in August 1619. By
about 1650 all of the colonies had estab-
lished elective assemblies, which eventu-
ally gained the authority to initiate laws
and levy taxes. The British appointed gov-
ernors, colonial councils, and judges in
most colonies, and some of these officials

In what is recognized as America’s first political cartoon, Benjamin
Franklin’s drawing depicts the colonies as caught in a classic collective
action dilemma. If united, the colonies represent a formidable force
for England to reckon with. But if any colony attempts to free ride, the
collective effort will survive no better than a dismembered snake.
Courtesy of the Library of Congress Prints & Photographs Division


1780s British defeat Americans at Camden and
Charleston (1780)

Hartford Convention (1781)

British surrender at Yorktown (1781)

Shays’s Rebellion (1786)

The Federalist (1787–1788) published

Articles of Confederation ratified (1781)

Constitutional Convention drafts blueprint for new
government (1787)

Constitution ratified (1789)

Source: Created by authors from data.

TABLE 2.1 (Continued)

37Chapter 2: The Constitution

vigorously resisted the expansion of
local prerogatives. But because the
elective assemblies paid their salaries
and funded their offices, these offi-
cers of the Crown found that they, too,
had to accommodate popular opinion.
The colonial experience thus taught
Americans that a popularly elected leg-
islature in control of the purse strings
could dominate other governmen-
tal institutions. The next generation
of leaders recalled this important and
enduring lesson as they convened in
Philadelphia to revamp the new nation’s
constitutional system.

In addit ion to experience in
self-governance, the state assemblies
supplied the nation with another vital
resource: elected politicians expe-
rienced in negotiating collective
agreements. As the vanguard of the
independence movement, these politi-
cians provided the nation with an era of
exceptional leadership.

Americans also entered independence well versed in constitution writing. A royal
charter or contract between the Crown and a British company or business entrepreneur
had provided the foundation for most colonies. Later, the colonists themselves wrote
constitutions, which they periodically revised. When in 1776 and again in 1787 the
nation’s leaders confronted the task of designing new government institutions, a written
constitution was, not surprisingly, the instrument of choice.

Home rule may have had its benefits for the American colonies, but as training for
self-governance, it shortchanged the nation. As with the rest of its far-flung empire, Britain reg-
ulated all of its colonies’ commerce and provided them with military security by means of its
navy, the world’s largest. Under this arrangement the colonies prospered and managed their
own local affairs, but this ingrained free riding and gave them little experience in managing
collective action. Britain preferred to deal with the thirteen colonies individually rather than
through some national assembly that might discover and pursue their common interests.
Later, after the nation had declared its independence, politicians who had stridently resisted
the Crown’s incursions into their local authority found themselves incapable of addressing
their collective problems as a nation. With nationhood, the free ride on Britain would end.

Home rule experienced its first strains during Britain’s war with France in the 1750s.
Known in America as the French and Indian War and in Europe as the Seven Years’
War, this lengthy, multicontinent conflict drained both Britain’s treasury and its military

On March 5, 1770, British troops fired into a crowd of men and boys in Boston,
killing five and wounding others. The massacre, depicted in this classic
engraving by Paul Revere, gave the word tyranny new meaning. These and
other events were instrumental in rousing colonial resistance to British rule on
the eve of the American Revolution.
Courtesy of the Library of Congress Prints & Photographs Division

38 Part I: The Nationalization of Politics

resources. Searching for assistance, Britain in 1754 summoned delegates from each of
the colonies to a conference in Albany, New York, to invite their collective assistance in
defending the western frontier against the French military and its Indian allies. Because
six of the thirteen colonies failed to send delegates, this would-be first national assembly
failed even before it convened.

Yet the Albany Congress produced the first serious proposal for a national govern-
ment. One of Pennsylvania’s delegates, Benjamin Franklin, already renowned throughout
the country as the man who had tamed lightning, proposed a “Plan of the Union” that
would have created a national government. The plan called for an American army to pro-
vide for the colonies’ defense, a popularly elected national legislature with the power to
levy taxes, and an executive appointed by the British king. (On learning of Franklin’s plan,
King George II declared, “I am the colonies’ legislature.”) But none of the colonial assem-
blies could muster much enthusiasm for Franklin’s ideas. Why should they share their
tax base with some dubiously mandated new governmental entity? And why should they
undertake Britain’s burden of providing for the colonies’ security and overseeing trade?
For them, free riding made eminent sense as long as they could get away with it. And they
did get away with it; another decade would pass before Britain tried to force Americans to
contribute to their defense. Only then did Franklin’s proposal attract interest.

Dismantling Home Rule
France’s 1763 defeat in the French and Indian War ended its aspirations for extensive col-
onization of America. The British, relishing their victory, had little idea, however, that the
war would trigger events that would severely compromise Britain’s claims in America over
the next decade.

By the end of the war Britain was broke. With its citizenry already among the most
heavily taxed in the world, the British government looked to the colonies to share in the
empire’s upkeep. At the time, the only British taxes on the colonies were duties on imports
from outside the British Empire, designed less to raise revenue than to regulate commerce.
To raise needed revenues, Britain decided to impose taxes. Moreover, to consolidate its
power Britain began to violate home rule. Every revenue law the British government
enacted during the decade after the French and Indian War contained provisions tighten-
ing its control over the internal affairs of the colonies.

The most aggressive challenge to home rule came in 1765 with passage of the Stamp
Act.* This law imposed a tax on all printed materials, including legal documents, licenses,
insurance papers, and land titles, as well as a variety of consumer goods, including news-
papers and playing cards. (Proof of payment of the tax was the stamp affixed to the taxed
document.) The tax had long been familiar to the British public, but it inflamed American
public opinion, not so much because of the money extracted but because of the instru-
ments used to extract it. Americans had paid taxes before, but they had been self-imposed,

*Earlier, the Sugar Act of 1764 had levied new duties on certain foreign imports and introduced new efforts to
interdict Yankee smuggling to circumvent import duties. At the same time Parliament passed another inflam-
matory law, the Currency Act, which forbade the colonies from printing their own currency, thus requiring
merchants to raise scarce hard cash to do business.

39Chapter 2: The Constitution

levied by the colonial assemblies to provide local
services. Thus the American response, “No taxa-
tion without representation,” was not simply the
rallying cry of a tax revolt. In fact, Americans
were not genuinely interested in representation in
the British Parliament. Rather, the colonists were
asserting home rule. A more accurate rallying cry
would have been “No taxation by a government
in which we want no part!”

The colonial assemblies passed resolutions
demanding the tax be repealed, and most sent
delegates to a national conference, the Stamp Act
Congress, to craft a unified response. For the first
time they united against Britain by agreeing unan-
imously on a resolution condemning the tax. They
could not agree, however, on a course of action.

The organized resistance of ordinary citizens
was more successful.* Throughout the colonies
local groups confronted tax collectors and pre-
vented them from performing their duties. Over
the next decade these scenes were repeated as
Britain imposed a half-dozen new tax and admin-
istrative laws designed to weaken the colonial
assemblies. Americans countered by boycotting
British products and forming protest organiza-
tions, such as the Sons of Liberty, the Daughters
of Liberty, and the more militant Committees of
Correspondence. Vigilantism and public demon-
strations overshadowed assembly resolutions.

The most famous of these demonstrations was the Boston Tea Party. No colony had
chafed under Britain’s new rules and import taxes more than Massachusetts, whose econ-
omy depended heavily on international trade and shipping. On a winter night in 1773 a
group of patriots donned Indian dress and dumped 342 chests of tea owned by the East India
Company into Boston Harbor to protest a new tax on Americans’ favorite nonalcoholic
beverage. Britain responded with the Restraining Acts and Coercive Acts, which closed the
port of Boston to all commerce, dissolved the Massachusetts assembly, decreed that British
troops in Boston must be quartered in American homes, and ordered that Americans
charged with protest crimes and British soldiers charged with crimes against the colonists be
sent to England for trial. Colonists viewed these last provisions as ensuring serious punish-
ment for the first group and lax punishment for the second.

*“Nothing else is talked of,” wrote Sally Franklin to her father, Benjamin, in London. “The Dutch [Germans]
talk of the stompt act the Negroes of the tamp, in short every body has something to say.” Mary Beth Norton
et al., A People and a Nation: A History of the United States (Boston: Houghton Mifflin, 1990), 117.

In this eighteenth-century satirical drawing by a British artist,
Bostonians gleefully pour tea down the throat of a customs official,
who has just been tarred and feathered. In the distance colonists
dump tea into Boston Harbor, just as they did in 1773 at the Boston
Tea Party. And, lest one British misdeed go unnoticed, a symbol of
the hated Stamp Act, passed in 1765, appears on the tree.
Courtesy of the Library of Congress Prints & Photographs Division

40 Part I: The Nationalization of Politics

The Continental Congresses
When colonists elsewhere witnessed Britain’s heavy-handed policies in Massachusetts,
they recognized their own vulnerability. Without hesitation, they answered the call of
Boston resistance leader Samuel Adams to assemble at Philadelphia in the fall of 1774 for
what became the First Continental Congress. Each colony sent its leading professionals,
merchants, and planters. These men had mostly known one another only by reputation,
but at this meeting they would form a nucleus of national leadership for the next decade.
Among them were the future nation’s first presidents: George Washington, John Adams,
and Thomas Jefferson.

The Continental Congress promptly passed resolutions condemning British taxes
and administrative decrees. When the idea of creating a national government was raised,
Franklin’s plan of union, the only existing proposal for unification, was introduced and
briefly but inconclusively debated. The most significant actions of the First Continental
Congress were adoption of a Declaration of American Rights, which essentially reas-
serted home rule, and endorsement of an agreement to ban all trade with Britain until it
rescinded the despised taxes and regulations. To enforce the boycott against the prospect
of massive free riding, Congress called for the formation of local elective “committees of
observation” in every county, town, and hamlet in the country. Soon many of these newly
formed organizations began imposing patriotic morality with investigations of “treason-
able” conversations and public rebukes of more ordinary vices. Earlier import boycotts had
been modestly successful—enough to alter British policy—but with the capacity to iden-
tify and sanction potential free riders, the new boycott won almost total compliance.

The eight thousand or so members of these local committees provided a base for the
statewide conventions that sprang up throughout the colonies when the British prevented
the colonial assemblies from meeting. Unhampered by local British authorities, these con-
ventions quickly became de facto governments. (When some colonies’ assemblies were
enjoined from meeting, they would adjourn to a local tavern and resume doing business
as an unofficial provincial convention.) They collected taxes, raised militias, passed “laws”
forbidding the judiciary from enforcing British decrees, and selected delegates to the
Second Continental Congress, which met in Philadelphia in May 1775.

By the time the Second Continental Congress gathered, war had broken out.
Spontaneous bloody uprisings in the spring of 1775 at Lexington and Concord in
Massachusetts had provoked the state conventions to mobilize local volunteer militias and
disarm suspected British loyalists. Events demanded concerted action, and the Second
Continental Congress responded by acting like a national government. Congress had no
legal authority to conduct a war effort, but throughout the colonies patriots desperately
required coordination, and it was the only national institution available.

Congress first instructed the conventions to reconstitute themselves as state gov-
ernments based on republican principles. Using their former colonial governments as
a model, most states adopted bicameral (two-chamber) legislatures, and all created
governorships. Accustomed to difficult relations with the royal governors, the states
severely limited the terms and authority of these newly minted American executives.

41Chapter 2: The Constitution

This antiexecutive bias would persist and influence deliberations at the Constitutional
Convention a decade later.

Then, acting even more like a government, the Second Continental Congress issued
the nation’s first bonds and established a national currency. It also authorized delegate
George Washington to expand the shrinking Massachusetts militia into a full-fledged
national army. (As if his colleagues had needed a hint, Washington attended the conven-
tion in full military dress of his own design.)

The Declaration of Independence
During its first year’s work of creating states and raising and financing an army, Congress
did not consider the fundamental issue of separation from England. But it was discussed
on street corners and in taverns throughout the nation. In January 1776 the pamphleteer
Thomas Paine published Common Sense, which moved the independence issue to cen-
ter stage. Within three months 120,000 copies had been sold, and Americans were talking
about Paine’s plainly stated, irresistible argument that only in the creation of an indepen-
dent republic would the people find contentment.

In this 1782 British cartoon at the close of the Revolutionary War, Benjamin Franklin’s diminutive,
garden-variety snake, struggling to stay whole (page 36), has become through unity a voracious “American
rattlesnake,” eager to consume British armies. “Two British Armies I have thus Burgoyn’d, And room for more
I’ve got behind,” it boasts. A sign posted on its rattle advertises ominously to British readers, “An Apartment to
Lett for Military Gentlemen.”
Courtesy of the Library of Congress Prints & Photographs Division

42 Part I: The Nationalization of Politics

The restless citizenry’s anticipation that Congress would consider a resolution of sep-
aration was realized in June when Virginia delegate Richard Henry Lee called for creation
of a new nation separate from Britain. Congress referred his proposal to a committee of
delegates from every region with instructions to draft the proper resolution. One mem-
ber of this committee was a thirty-three-year-old lawyer from Virginia, Thomas Jefferson.
Asked to draft a statement because of “his peculiar felicity of expression,” Jefferson mod-
estly demurred. This prompted the always-direct John Adams of Massachusetts to pro-
test, “You can write ten times better than I can.”2 Jefferson’s qualifications to articulate the
rationale for independence extended well beyond his writing skills. Possessing aristocratic
tastes but democratic values, he never wavered from an abiding confidence in the innate
goodness and wisdom of common people. “State a moral case to a ploughman and a pro-
fessor,” he once challenged a friend. “The former will decide it as well, and often better
than the latter, because he has not been led astray by artificial rules.”* In the end, Jefferson
agreed to draft the resolution of separation.

Jefferson concurred with the other delegates in many of the specific grievances item-
ized in the resolution he drafted, but for him the real rationale for throwing off British
rule rested on the fundamental right of self-government. Such conviction produced this
famous passage:

We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed. That whenever any form of government becomes
destructive of these ends, it is the Right of the People to alter or abolish it, and
to institute new Government.

Jefferson’s colleagues made only slight changes in this centerpiece of the Declaration
of Independence, but they did amend his list of grievances. Foreshadowing the future
conflict over race, Jefferson’s indictment of Britain for introducing slavery into the colo-
nies offended the sensibilities of slave-owning southern delegates. At their insistence,
this grievance was stricken from the final resolution.† (The full text of the Declaration of
Independence appears in the appendix.)

*Whether drafting Virginia’s first law guaranteeing religious freedom as a member of its House of Burgesses,
revising Virginia’s constitution, or founding the University of Virginia, Jefferson consistently engaged in activi-
ties liberating the inherent capacities of his fellow citizens. Joseph R. Conlin, The Morrow Book of Quotations in
American History (New York: Morrow, 1984).
†Among the items deleted: “He [King George III] has waged cruel war against human nature itself, violating
its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating
them and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation
thither.” In Thomas Jefferson, ed. Merrill D. Peterson (New York: Library of America, 1984), 21–22.

43Chapter 2: The Constitution

In a solemn ceremony on July 4, 1776, the Second Continental Congress officially
accepted the document. Rebelling against a colonial power with a huge occupation army
was a dangerous enterprise. The conclusion of the Declaration—“we mutually pledge to
each other our lives, our Fortunes, and our sacred Honor”—was not mere rhetoric.

America’s First Constitution:
The Articles of Confederation
With the Declaration of Independence in hand, the delegates to the Second Continental
Congress proceeded to “institute a new Government,” as called for in the Declaration.
Over the next several weeks they drafted and sent to the new states for ratification the
nation’s first constitution, the Articles of Confederation. Although not ratified until 1781,
the Articles served as the nation’s de facto constitution during the intervening war years.

As its name implies, the first American constitution created a confederation, a highly
decentralized system in which the national government derives limited authority from
the states rather than directly from citizens. Not only do the states select officials of the
national government, but they also retain the authority to override that government’s

The Articles transferred the form and functions of the Continental Congress to the
new, permanent Congress, in which each state received one vote. Major laws required
the endorsement of nine of the thirteen state delegations, whereas more fundamen-
tal changes, such as direct taxation, necessitated unanimous agreement to amend the
Constitution. National authority was so restricted that the delegates saw little purpose for
an executive branch or a judiciary. From time to time administrators might be required,
but they could be hired as needed and directly supervised by the new Congress.

In adopting a confederation, the delegates sought to replicate the home rule they had
lost in the 1760s. Clearly, after years of free riding under British rule, they were not yet will-
ing to absorb the collective action costs associated with nationhood. Yet they also recog-
nized that in declaring their independence they thrust upon themselves responsibility for
supplying essential public goods—most important, defense and commercial markets—
that Britain had provided under home rule. The same delegates who had pressed hardest
for independence, knowing that it was likely to lead to war, were among those who most
vigorously favored a confederation over a more centralized and powerful national govern-
ment. Undoubtedly, the new nation’s leaders still had a great deal to learn about the logic of
collective action. But they would learn in time—the hard way. Their suspicion of national
authority very nearly cost the fledgling nation its independence.

The Confederation at War
Faced with a war raging for over a year, the states, unwilling to give the national govern-
ment sufficient authority to conduct the war, became chiefly responsible for recruiting

44 Part I: The Nationalization of Politics

troops and outfitting them for battle. The national military command, which answered to
Congress, assumed responsibility for organizing the various state regiments into a single
fighting force. In principle, Congress was assigned the role of coordinator. It would iden-
tify military requirements, assess the states, and channel their (voluntary) contributions to
the army. Congress also was empowered to borrow money through bonds, but its lack of
taxation authority made bonds a risky and expensive venture for the government, which
had to offer high interest rates to attract investors.

The public’s deep suspicion of government also prevented national officeholders from
creating the administrative structures suitable for the new government’s wartime respon-
sibilities. John Adams even wanted to prevent Washington from appointing his own staff
officers for fear that “there be too much Connection between them.” Instead, he argued,
Congress should select all officers so that these “officers are checks upon the General.”
Adams’s appeal to the “proper Rule and Principle” stimulated serious debate, but he did
not prevail in this instance. Adams was, however, more successful in other attempts to
dilute executive powers.

The administrative vacuum sucked congressional committees into the daily affairs of
requisitioning an army. These legislators struggled mightily, even heroically, to do their
duty, but most were unskilled in administration and frequently unable to make timely deci-
sions. In fact, the members of one committee expressed such a variety of views on the num-
ber of uniforms to be ordered that they were unable to come to a decision. The desperate
plight of General Washington’s army as the war continued attests to the naiveté and inef-
fectiveness of the confederation’s structure. Thus the collective action problems described
in Chapter 1 were evident in America’s war effort: contagious levels of free riding and the
reluctance of some states to contribute their fair share for fear that the other states would
hold back (a classic prisoner’s dilemma). Moreover, the undeveloped national administra-
tion provided fertile soil for equally debilitating free riding in the form of corruption.

Without the authority to play a more central role in administering the war, Congress
responded to the quickly deteriorating military situation by decentralizing authority even
further. Among other things, it passed resolutions instructing the states to supply their
troops directly. Perhaps, some members reasoned, the states would be more forthcoming
with support for their own sons in uniform. This scheme had the merit of converting a
public good—military supplies that all state regiments could consume regardless of their
state’s contribution—into a more or less private good that linked the welfare of each state’s
troops to its legislature’s effort. But the actual practice of thirteen states locating and sup-
plying intermingled regiments scattered up and down the Atlantic seaboard presented
a logistical nightmare. On hearing of it, General Washington caustically remarked that
members of Congress “think it is but to say ‘Presto begone,’ and everything is done.” At
the same time pressure mounted on various fronts, including within Congress itself, for
Congress to assume greater authority to conduct the war.* Understandably, the military

*Ten years later these advocates of congressional authority would form the core group of nationalists, led by
James Madison and Alexander Hamilton, pressing the nation for a new constitution.

45Chapter 2: The Constitution

commanders were the most outspoken in lobbying Congress and state governors for a
“new plan of civil constitution.”3 General Washington advised Congress that an “entire
new plan” providing it with the authority “adequate to all of the purposes of the war” must
be instituted immediately. Washington’s aide Alexander Hamilton, later one of the archi-
tects of the Constitution, showered members of Congress with correspondence urging
them to grasp the emergency authority he claimed was inherent in the Articles. Without
the “complete sovereignty” that could come only with an independent source of revenue,
he argued, Congress would have neither the resources nor the credibility necessary to con-
duct the war. And, as the states’ dismal performance had proved, if Congress did not take
control, no one else could.*

The addition of the second major group—state officials—to the chorus for reform
reveals the pervasiveness of frustration with the confederation. Although the confed-
eration had sought to empower these officials above all others, many found themselves
trapped in a classic prisoner’s dilemma. They were prepared to sacrifice for the war, but
only if they could be confident that the other states would also do their part. Moreover,
many of their colleagues who had been outspoken champions of volunteerism were
defeated in the 1780 elections by challengers calling for a strengthened national authority
that could enforce agreements.

By the summer of 1780 some states were taking direct action. In August represen-
tatives of several New England states met and passed a resolution calling for investing
Congress with “powers competent for the government.” Several months later five north-
ern states met at what is now known as the Hartford Convention to urge Congress to
grant itself the power to tax. In a remarkable resolution the convention called for
Congress to delegate to General Washington the authority “to induce . . . punctual com-
pliance” from states that ignored their obligations to supply the army. The delegates
realized that states would only cooperate (and end their prisoner’s dilemma) under the
threat of coercion.

Congress responded as best it could, but it labored under a constitution designed to
frustrate national action. In 1781 Rhode Island, with less than 2 percent of the nation’s
population, vetoed a bill giving Congress the authority to levy taxes. Various administra-
tive reforms were enacted but had to be watered down to win unanimous endorsement.
Congress could not agree on how much independent authority to delegate to the execu-
tive offices it created. As a result, the offices had no authority, and their occupants served
at the beck and call of the legislature’s committees.

The tide turned after France, England’s long-standing adversary, agreed to lend the
Americans hard currency. By 1782 General Washington could write for the first time since
the beginning of the war that his army was well fed, clothed, and armed. A reinvigorated
American army and France’s continued participation in the war presented Britain with the

*Hamilton also argued that Congress must delegate administration to “great officers of State—A secretary for
foreign affairs—A President of War—A President of Marine—A Financier.” In effect, he was calling for an
autonomous national government with a legislature at its center and a separate executive branch.

46 Part I: The Nationalization of Politics

prospect of a far longer conflict. (France formally recognized American independence and
agreed to support the United States unilaterally in 1778.) In October 1781 British troops,
under General Charles Cornwallis, suffered defeat at Yorktown, Virginia, and Britain sued
for peace. Thus the United States had somehow survived a war with an occupying army. In
the jubilation of victory, however, momentum for political reform was lost.

The Confederation’s Troubled Peace
Shortly after signing the peace treaty with Britain, the nation lunged toward new
perils—indeed, to the point that many Americans and even more Europeans wondered
whether the hard-won independence might still be lost in national disintegration. By 1787
American leaders were openly speculating about the prospect of Britain reasserting its
authority over the barely united and internally divided states. “America is a nation without
a national government,” one critic observed, “and it is not a pretty sight.”

The War-Torn Economy
After six years of war, the nation’s debt was staggering. Congress owed Americans about
$25 million and foreign governments another $10 million. The most urgent concern was
the back pay owed the army. In the spring of 1783 General Washington learned of a con-
spiracy forming among disgruntled officers to march on Congress. Greatly alarmed, he
wrote his former aide Alexander Hamilton, now a member of Congress, that the army
should be paid and “disbanded without delay.” The army is “a dangerous instrument to
play with,” he warned ominously. Prudently, Congress followed Washington’s advice.

Creditors who had supplied the troops formed another long line. But Congress was
more successful in ignoring these unarmed claimants, some of whom eventually received
partial payment from the states. Abroad, debts to Britain negotiated in the peace settlement
and loans from European governments and private interests all had to be repaid before
normal commercial relations with these countries could resume. In the face of so much
debt, the national currency plummeted to approximately one-tenth of its prewar value.

The complexities of governing by confederation compounded the problem.
Congress held the debt, but the states controlled the purse strings. As it had during the
war, Congress prescribed annual state contributions to reduce the debt over twenty-five
years. But no one expressed confidence that the states, having proved so unreliable in
war, would step forward in peace to accept fiscal responsibility for the nation. With no
enforcement mechanism in place, the states again individually confronted a classic pris-
oner’s dilemma: no state would contribute its share of the revenue so long as it suspected
one or more of the other states might not meet its obligations. Congress faced two tough
choices. It could try to penalize those states that reneged, or it could try to finance the debt
on its own. The latter proved more feasible. Thus in the same bill that mapped long-term
debt reduction Congress proposed a constitutional amendment giving the national gov-
ernment a source of direct revenue in the form of import duties. As in the past, however,
the Articles’ unanimous consent rule for amendments frustrated action. Unwilling to

47Chapter 2: The Constitution

share the revenue from its already active port city of New York, the New York legislature
killed this proposal.

Trade Barriers at Home and Abroad
The nation’s shaky finances were not helped by its trade problems, which also stemmed
from the confederation’s explicit reservation of all matters of commerce to the states. For
example, Congress lacked the authority to negotiate credible trade agreements with other
nations. European governments found this arrangement, in which trade agreements
required the endorsement of each state’s legislature, unwieldy. The national government
also proved incapable of responding to discriminatory trade sanctions and other actions
abroad. When the British and later the French closed their West Indies possessions to
U.S. exports, the action threatened the fragile, war-torn economy that depended heavily
on exports.

Economic relations among the states were nearly as unsatisfactory. States with inter-
national ports charged exporters from other states stiff user fees. New York victimized
New Jersey; Virginia and South Carolina both extracted a toll from North Carolina. And
each state minted its own currency. Some states, responding to political pressures from
indebted farmers, inflated their currencies. Exchange rates fluctuated widely across states,
rendering interstate commerce a speculative financial exercise.

To no one’s surprise, many sectors of the economy clamored loudly for reform. The
nation’s creditors wanted a government able to pay its debts. Importers and the mercantile
class desperately needed a sound currency and an end to capricious state policies toward
other states’ goods. The profits of southern tobacco and indigo growers depended wholly
on open export markets, which only a national government could negotiate effectively.
The need for a central authority that could create and manage a common market at home
and implement a unified commercial policy abroad spurred diverse economic interests to
call for a revision of the Articles of Confederation.

In the summer of 1786 Virginia made the first move, inviting delegates of other
states to convene that fall in Annapolis, Maryland, to consider ways of strengthen-
ing the national government’s role in commerce. Eight states named delegates, but
when those from only five states showed up, the Annapolis convention adjourned
after passing a resolution calling for another convention in Philadelphia nine months
later. Thus the Annapolis convention earned a place in history by setting the stage for
the Constitutional Convention in May 1787. Although the delegates had no reason to
believe the next meeting would generate any better turnout, events during the interven-
ing months, including Shays’s Rebellion, galvanized interest and mobilized the states
behind constitutional reform.

Popular Discontent
In the economic depression that followed the Revolution, many small farmers lost their
land and other assets. Markets were disrupted, credit became scarce, and personal debt

48 Part I: The Nationalization of Politics

mounted. The financial straits
of small farmers spawned occa-
sional demonstrations, but none
so threatening as the one that
erupted in the fall of 1786 in west-
ern Massachusetts, where taxes
were especially onerous and the
local courts unforgiving. Many
farmers lost their land and pos-
sessions at the auction block, and
some were even being hauled
off to debtors’ prison. The pro-
test movement began with town
meetings and petitions to the
state legislature to suspend taxes
and foreclosures. When their
appeals failed to win much sym-
pathy, these disaffected citizens
found more aggressive ways to
remonstrate their grievances.
Under the leadership of Daniel
Shays, a former captain in the
Continental Army and a bank-
rupt farmer, an armed group

composed mostly of farmers marched on the Massachusetts Supreme Court session in
Springfield to demand that state judges stop prosecuting debtors. Shays’s band was met by
the state militia, but the confrontation ended peacefully after the magistrates adjourned
the court.

In late January 1787, Massachusetts erupted once more, this time with enough vio-
lence to convince the states to convene in Philadelphia. Having learned that Shays planned
an assault on a government arsenal in Springfield, delegates from Massachusetts appealed
to the national government to send funds and troops. Once again unable to muster com-
pliance among the states, Congress could offer neither troops nor money. A similar appeal
to neighboring states proved no more productive. Finally, the state organized a militia (in
part with private donations) that intercepted and repulsed Shays’s “army” of about a thou-
sand farmers outside the arsenal. Over the next several weeks some of Shays’s men were
captured, others dispersed, and the rebellion ended.

Had it been an isolated incident, even this event might not have persuaded state lead-
ers of the need for a stronger national government. But Shays’s Rebellion coincided with
a wave of popular uprisings sweeping across the country. The same winter, two hundred
armed farmers in Pennsylvania had tried to reclaim neighbors’ possessions that had been

Despite their defeat, the
protesting farmers led by
Daniel Shays won a number of
reforms from the
Massachusetts state legislature,
which lowered court costs and exempted household
necessities and workmen’s tools from the debt collection
process. The unintended impact of Shays’s Rebellion on
national reform was far more dramatic. It demonstrated
that the confederation could not perform the most basic
function of government—keeping peace.
Sarin Images/The Granger Collection, NYC — All rights reserved.

49Chapter 2: The Constitution

seized by tax collectors. On the same day as Shays’s defeat, these farmers rescued a neigh-
bor’s cattle from a tax sale. Virginia protesters, following the example of the insurgents in
Massachusetts, burned down public buildings. Their favorite targets were jails and court-
houses where tax and debt records were kept.

State legislatures, either intimidated by threats of force or genuinely sympathetic
with farmers’ demands, started to cave in under the slightest pressure from these con-
stituencies. At times, these bodies’ knee-jerk responses caused them to behave in ways
more in keeping with revolutionary tribunals than with deliberative republican legisla-
tures respectful of property rights. Throughout the country they summarily overturned
unpopular court decisions, altered property assessments, and issued quickly devalued
paper money, which they then forced creditors to accept as full payment of farmers’ debts.
One scholar offered this assessment: “The economic and social instability engendered by
the Revolution was finding political expression in the state legislatures at the very time
they were larger, more representative, and more powerful than ever before in American
history.”4 Observing all this, the troubled James Madison of Virginia wrote his friend
Thomas Jefferson in Paris, where Jefferson was serving as the states’ ambassador: “In
our Governments the real power lies in the majority, and the invasion of private rights . . .
chiefly [arises] . . . not from acts of Government contrary to the sense of its constituents,
but from acts in which the Government is the mere instrument of the major number of
the constituents.”5 Madison’s discomfort with arbitrary majority action guided his efforts
and those of like-minded delegates throughout the Constitutional Convention.

To many observers, Shays’s Rebellion represented a wildfire threatening to sweep the
country into anarchy.6 No matter how persuasive Hamilton, the beloved Washington, or
any of the other nationalists were in promoting the cause of constitutional reform, it was
Daniel Shays who offered the most compelling reason for states to send delegates to the
Philadelphia Convention. Ultimately, the states took the first steps toward true unification
not in response to their collective dilemma, but rather out of a more fundamental concern
with self-preservation. When they assembled in Philadelphia the next spring, delegates
from all states except Rhode Island showed up.

Drafting a New Constitution
In their deliberations the fifty-five youngish, well-educated white men who gathered in
Philadelphia in 1787 drew on their shared experience of war and its aftermath, but they
did not do so reflexively or out of narrowly construed self-interest. They also were highly
conversant in the ideas and theories swirling “in the air” during the Enlightenment, as the
dominant intellectual current of the eighteenth century was known. Influenced by recent
advances in science, scholars—and even America’s politicians—sought through careful
reasoning to discern the “natural laws” that governed economics, politics, and morality.
The impact of these ideas was a matter not merely of their novelty and intellectual appeal,
but also of how they illuminated Americans’ experiences.

50 Part I: The Nationalization of Politics

Thus the Constitution that eventually arose out of the Convention was grounded in
theories of politics, economics, and even science that were attracting attention at the time
throughout Europe. The delegates cited dozens of contemporary and ancient philoso-
phers during floor deliberations, often quoting them in their original language of Latin or
French. Of these thinkers, several deserve to be singled out because their ideas are clearly
discernible in the Constitution.

Philosophical Influences
Heading any list of influential Enlightenment thinkers is the English philosopher John
Locke (1632–1704), whose brilliant writings on political theory and design of government
read in some places as if the Framers were his sole audience. In 1690 Locke vigorously
defended the still-novel idea of popular sovereignty—that is, citizens’ delegation of author-
ity to their agents in government, with the ability to rescind that authority.7 This argument
clearly influenced Jefferson’s words in the Declaration of Independence. Moreover, Locke
stressed individual rights and the limited scope of government authority. If Locke’s ideas
strike the modern student as unexceptional, it is because they are so thoroughly embedded
in the U.S. Constitution and governmental system that they are taken for granted.

During the same era another Englishman, Sir Isaac Newton (1642–1727), established
the foundations of modern mechanics and physics. His discovery of the laws of physical
relations (such as gravity) inspired the Framers to search for comparable laws governing
social relations. Evidence of Newton’s influence can be seen in the Framers’ descriptions of
their design proposals to one another and later to the nation. Concepts such as “force,” “bal-
ance,” and “fulcrum” and phrases such as “laws of politics” and “check power with power”
that seemed borrowed from a physics textbook were bandied about with great familiarity.

Perhaps more than anyone else, the French philosopher Charles, Baron de
Montesquieu (1689–1755), supplied the Framers with the nuts and bolts of a design of
government, particularly his classification of governmental functions and forms as leg-
islative, executive, and judicial. Like Locke, Montesquieu championed limited govern-
ment—limited not only in the nature of its authority but also in the size of the political
community it encompassed. Thus during and after the Convention opponents of reform
invoked Montesquieu’s case for the superiority of small republics as a powerful counterar-
gument to those who advocated empowering the national government.

Finally, the Scottish philosopher David Hume (1711–1776) treated politics as a com-
petition among contending interests, in much the same way that his fellow countryman
Adam Smith described competition in the marketplace of an emerging capitalist econ-
omy. An ocean away, James Madison adapted Hume’s arguments to his own purposes,
much as Jefferson did Locke’s.

America’s founding leaders, though politicians, often behaved as if they were philos-
ophers, carefully studying and even writing treatises on government. The most impor-
tant is James Madison’s three-thousand-word essay “Vices of the Political System of
the U. States,” which he drafted in the spring of 1787 after extensive research on ancient

51Chapter 2: The Constitution

and modern confederations. (Madison had Jefferson scour Paris bookstores for source
materials.) Madison circulated copies of his manuscript among fellow Virginians who
would be attending the Philadelphia Convention to prepare them for the reform proposal
he was writing. Madison’s sophisticated understanding of politics is apparent in a passage
attributing the confederation’s failure not to a moral breakdown of the citizenry but to the
classic prisoner’s dilemma embedded in faulty institutions: “A distrust of the voluntary
compliance of each other may prevent the compliance of any, although . . . [cooperation is]
the latent disposition of all.”

Getting Down to Business
Most of the delegates representing their states in Philadelphia probably were unaware of
the grand scope of the enterprise on which they were about to embark. Some undoubt-
edly assumed that the Convention would simply return to the Annapolis agenda that
sought to resolve commercial disputes at home and coordinate the states’ commercial
policies abroad. Others anticipated minor reforms of the Articles and were prepared to
take the positions dictated by their state legislatures. But at least a few, most notably James
Madison, were planning—indeed, plotting with others of like mind—to scrap the Articles
of Confederation altogether and start over.

Sensing his fellow Virginian’s hidden agenda, war hero Patrick Henry announced he
“smelt a rat” and refused to join the delegation to Philadelphia. The Delaware legislature
was similarly suspicious and instructed its delegates to oppose any scheme that under-
mined the equality of the states. Another small state, the ever-independent Rhode Island,
boycotted Philadelphia altogether.

The Convention opened on a rainy Friday, May 25, 1787. By near universal acclama-
tion, the delegates elected General Washington to preside over the deliberations, and the
Convention began on a harmonious note. Madison sat at the front, where he could easily
participate in floor debates and record the arguments of his colleagues.* The Convention
agreed to keep the proceedings secret to allow a frank exchange of views and to facilitate
compromise. This decision also meant keeping the window shutters closed during one of
the hottest summers in Philadelphia’s history.

The Virginia and New Jersey Plans
On the first day of substantive business Madison and his nationalist colleagues sprang
their surprise. Edmund Randolph, also from Virginia, introduced Madison’s blueprint
for a new constitution. In this revised constitution Madison favored those institutional
design features more closely resembling parliamentary systems than those of the future

*Unable to fathom the purpose of certain provisions of the ancient constitutions he had examined in his prepara-
tion for the convention, Madison was determined not to leave future generations in the dark about the rationale of
this new constitution. Thus he carefully recorded the business of the convention. Notes on the Federal Convention
was discovered among Madison’s papers after his death in 1837. The federal government paid his widow, Dolley,
$30,000 for the papers and published them three years later. This discussion closely follows Madison’s Notes.

52 Part I: The Nationalization of Politics

American republic. In the Virginia Plan, as it came to be known, Madison appears to have
been more concerned with fashioning an active national government, even if it imposed
high conformity costs on the states. The Virginia Plan dominated floor debate well into
July. Although few of its provisions survived intact in the final draft of the Constitution,
the Virginia Plan succeeded in shifting the deliberations from patching up the confedera-
tion to considering anew the requirements of a national union.

The centerpiece of the Virginia Plan was a bicameral national legislature. Members
of the lower chamber would be apportioned among the states by population and directly
elected by the citizenry. The lower chamber would, in turn, elect the members of the
upper chamber from lists of nominees supplied by the state legislatures. It also would elect
the officers of the proposed executive and judicial branches (represented in Figure 2.1).
Madison’s intent was clear: only representatives, whose direct election by the people gave
them special legitimacy in formulating national policy, would control the selection of the
other officers of government.

To solve the nation’s collective action problems, the Virginia Plan also gave the
national government enforcement authority. It could make whatever laws it deemed
appropriate and veto any state laws it regarded as unfit. If a state failed to fulfill its legal
obligations, the national government could summon military force against it. This pro-
vision proved to be a tactical mistake because it inflamed opposition. In the meantime,
the nationalists realized belatedly that military force would never be needed because the
national government could directly implement its own policies and would no longer
depend on the cooperation of the states.

With the states reduced to the status of junior partners, the national legislature would
assume a standing comparable with that of the British Parliament. Madison did provide
one check on this legislative dynamo: a Council of Revision, composed of the executive and
certain judges, which could veto legislation. Its members, however, would be elected by

� FIGURE 2.1 Organization of the National Government under the Virginia Plan

House of

of RevisionSenateVoters }




members of
other branches

Elects senators
proportional to
state populations

Nominate senators

53Chapter 2: The Constitution

the legislature. Thus skeptical delegates reasonably questioned how effective such a check
could be. In any event, Madison proposed allowing Congress to override a council veto.

After Madison achieved early success in some preliminary floor votes, opposition,
mainly from two sources, to his radical reforms solidified. Delegates representing the less
populous states were understandably upset. They could easily calculate that they (and
their citizens) would have far less representation under the Virginia Plan than they pres-
ently enjoyed with equal state representation and the one-state veto rule. Another bloc
(mostly from small states as well) wanted stronger safeguards of state sovereignty. For
these states’ rights delegates, continued state participation in the selection of national
officeholders was as important an issue as how legislative seats were to be apportioned.

Both groups coalesced around an alternative proposed by New Jersey delegate William
Paterson, known as the New Jersey Plan. This late, hastily drafted response to the Virginia
Plan was not as thoroughly thought through as Madison’s proposal. It satisfied the require-
ments of its states’ rights supporters, however, by perpetuating the composition and selec-
tion of Congress as it functioned under the Articles of Confederation and continuing to
give each state one vote. But the New Jersey Plan broke with the Articles by giving Congress
the authority to force the states to comply with its tax requisitions. This plan also allowed a
simple majority vote to enact national policy rather than the supermajority required in the
Articles. The New Jersey Plan thus eliminated the most objectionable features of the con-
federation. But its retention of a seriously malapportioned Congress representing the states
rather than the citizenry did not come close to satisfying the demands of the nationalists.

Debate on the composition of Congress raged for weeks, with each side steadfastly
and heatedly refusing to budge.* Stalemate loomed. As the meetings neared a Fourth
of July recess, the delegates agreed to send the question of Congress—its selection and
composition—to a committee with instructions to report out a recommendation after the
break. Madison was not named to the committee.

Features of the Constitution
The Great Compromise
The committee’s solution was a Solomon-like compromise that split control of the
legislature’s two chambers between the large (House of Representatives) and small
(Senate) states. The upper chamber, or Senate, would retain many of the features
of Congress under the Articles of Confederation: each state legislature would send
two senators to serve six-year terms. Madison’s population-based, elective legisla-
ture became the House of Representatives. To sweeten the deal for the nationalists,
who had rejected a similar compromise earlier in floor deliberations, the committee reserved
to the House alone the authority to originate revenue legislation (represented in Figure 2.2).

*Madison’s allies did make one significant concession, accepting an amendment that gave the states sole author-
ity to select the members of the upper house. Thus the Senate began to assume its ultimate form. But the dele-
gates from small states pressed for more: equal state representation in both chambers.

54 Part I: The Nationalization of Politics

The unanimous agreement rule that had hobbled the Confederation Congress was
gone, replaced by a rule that wholly ignored states as voting entities and instead empow-
ered a majority of each chamber’s membership to pass legislation. Moreover, the delegates
agreed to a broad list of enumerated or expressed powers, contained in Article I, Section
8, of the Constitution, that extended the authority of the national legislature far beyond
that available to Congress under the confederation. These powers included the authority
to declare war, maintain an army and a navy, and borrow money. Another item on the list
of new powers stood out: the authority “to regulate Commerce with foreign Nations, and
among the several States.” This commerce clause greatly expanded the new Congress’s—
and, in turn, the national government’s—sphere of action. And another clause in Section
8 further compounded its impact. The Framers closed the long list of explicit powers with
the following general provision: Congress shall enjoy the authority “to make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the United States.”
This critical provision, called the necessary and proper clause, left the door open for a
major expansion of Congress’s legislative power and the nationalization of public policy
during the twentieth century.*

� FIGURE 2.2 Virginia Plan, New Jersey Plan, and Great Compromise

Virginia Plan

✯ Two-chamber legislature;
representation based on state population

✯ Lower chamber of legislature
elected by the citizenry; upper chamber,
executive, and courts elected by the
lower house

✯ Legislature can make any law and
veto any state legislation

✯ Council of Revision (composed of
executive and court) can veto legislation,
but legislature can override by majority

New Jersey Plan

✯ Single-house chamber; equal
representation for each state regardless
of population

✯ Legislature has same power as under
Articles, with added authority to levy taxes
and regulate commerce; can exercise
supremacy clause over state legislation

✯ Plural executive can be removed by
legislature (on petition of a majority of
states); courts appointed by executive

✯ Supreme Court hears appeals in limited
number of cases

Great Compromise

✯ Two-chamber
legislature, with lower
chamber (House of
representation based
on population and
upper chamber (Senate)
representation equal for
every state

✯ Authority to levy
taxes reserved to the
lower chamber

*Chapter 3, “Federalism,” traces the nationalization of public policy via the necessary and proper clause. In
addition to listing what Congress can do, the Constitution lists what it—and the states—cannot do. Article I,
Section 9, restricts Congress from granting titles of nobility, spending unappropriated funds, suspending the
writ of habeas corpus, passing ex post facto laws, levying income taxes (the Sixteenth Amendment ratified in
1913 rescinded this provision), and taxing state exports. Section 10 imposes restrictions on states, prohibiting
them from conducting foreign policy (through entering into treaties or alliances or conducting war), printing
money, passing laws undermining contracts, and imposing tariffs or duties on trade.

55Chapter 2: The Constitution

Both defenders and critics of an activist federal government agree that all national pol-
icies affect interstate commerce in some way. Together these clauses have provided a ratio-
nale for enacting far-reaching national legislation, including federal laws against interstate
kidnapping and bank robbery; regulations on agricultural production (covering even the
growth of feed that never leaves the farm where it was grown); bans on racial and other
discrimination in restaurants, hotels, and public transportation; laws against possession of
guns near public schools; and thousands of other wide-ranging national policies.

The committee’s proposal was adopted by a vote of 5–4, with the other states abstain-
ing or absent. Opposition came uniformly from the nationalists, who viewed the com-
promise as one sided. Through the Senate a majority of the states could still prevail over
national policy. But the nationalists also recognized that this was the best deal they could
get. Because the preferences of the states’ rights delegates were more closely aligned with
those of the status quo, they could more credibly present the nationalist side with a take-it-
or-leave-it proposition.

Now, more than two centuries later, the political logic of dividing representation in
Congress between the citizens and the states no longer matches reality. The supremacy
of the national government over the states was decided by the Civil War. Senators have
been elected directly by the voters since adoption of the Seventeenth Amendment in
1913. Despite the new reality, the Senate—the institution that embodies the initial logic
of states’ rights—persists. Indeed, as noted in Chapter 1, once in place an institution tends
to survive long after the circumstances that fashioned it in a particular form have changed
beyond all recognition. Although it is difficult today to justify a system in which, for
example, citizens of Wyoming count for sixty-five times as much as citizens of California
in one chamber of the national legislature, Americans are stuck with it. Yet, although
still badly malapportioned, the modern Senate has become as attuned as the House of
Representatives to changes in popular sentiments (covered in Chapter 6, “Congress”).

Because the compromise plan substantially strengthened the national government’s
capacity for action, most nationalists except Madison reconciled themselves to it—at least
initially. The man who during his lifetime was called “the father of the Constitution” main-
tained that ultimately the nationalists would prevail by letting the country stew a while
longer under the Articles. Eventually he was talked out of that idea, but he remained pro-
foundly disillusioned. Then, perhaps literally overnight, Madison scrapped the rest of the
Virginia Plan and made what amounted to a 180-degree turn in his views on the proper
relations among government institutions. A new, more strategic politician had emerged.
Suddenly Madison expressed enthusiasm for a genuine separation of powers between the
branches, with each side exercising checks and balances over the others. The reasoning
behind his hurried reassessment might have gone something like this: if the state legisla-
tures could corrupt the new Congress through their hold on the Senate, they also could
corrupt the entire national government through Congress’s power to select the officers
of the other branches of government. The solution: insulate the executive and judicial
branches and enlist them in containing any efforts by the states through the Senate to sub-
vert national policy. Thus in early July, with the summer half over and the proceedings

56 Part I: The Nationalization of Politics

gathering momentum, Madison turned his attention to fashioning an independent execu-
tive and judiciary.

Checks and Balances
Checks and balances may not have been a prominent feature of Madison’s initial plan for
the new constitution, but once the Senate appeared firmly under control of the states, he
became preoccupied with installing authority within each branch that would allow it to
prevent one of the other branches from adopting unwise policies. With checks and bal-
ances the three branches would share power. The president could nominate a judge
(a kind of check on the judiciary), but the nominee could not be appointed unless
confirmed by the Senate (a kind of check on both the president and judiciary). Figure 2.3
shows the most important checks and balances in the Constitution, but not all!

� FIGURE 2.3 Checks and Balances on the Constitution












l b








l v


































t c






ongress can im

peach federal judges, set the size

of the Suprem
e C

ourt and the jurisdiction of low

courts, and determ
ine judicial salaries and budgets.

The Senate confirm
s all federal judges.

ourts can declare law

s unconstitutional.

ongress can im

peach federal judges, set the size

of the Suprem
e C

ourt and the jurisdiction of low

courts, and determ
ine judicial salaries and budgets.

The Senate confirm
s all federal judges.

ourts can declare law

s unconstitutional.

The president nominates Supreme Court
and other federal judges.

Courts can declare laws unconstitutional. President/



Court (and

federal courts)/
Judicial Branch

57Chapter 2: The Constitution

Designing the Executive Branch
In May 2020 Donald Trump announced his intentions to reopen large segments of the
economy that the states had shut down with quarantines in response to the COVID-19
pandemic. When a reporter questioned his authority to do this, the president responded
with total disregard for and was perhaps unaware of the intricate network of “checks and
balances”: “The authority of the president of the United States having to do with the sub-
ject we’re talking about, the authority is total, and that’s the way it’s got to be. . . . It’s total.
The governors know that. . . . They can’t do anything without the approval of the president
of the United States . . . I have the ultimate authority.”8

Of all the Framers, Alexander Hamilton would probably have been sympathetic with
the tenor if not the details of Trump’s sentiment. Hamilton had expressed the greatest
enthusiasm for a strengthened, independent executive. In fact, he envisioned a president
elected for life. These sentiments led his colleagues to ignore his views as they turned their
attention to the presidency. His eloquent speeches were “praised by everybody . . . [but]
supported by none,” reported one candid delegate.

The delegates’ lack of enthusiasm for an active, authoritative presidency is under-
standable. They had just finished dividing legislative authority into two coequal chambers
with representatives and senators to be elected for different terms and from different con-
stituencies. With each chamber able to block intemperate policies arising from the other,
the Framers could more safely invest in them broad authority to make policy. Once the
delegates dismissed the idea of a plural executive as impractical, the presidency no longer
contained the internal checks that would have it control its excessive impulses.

This posed a serious dilemma for the Convention. Even a casual survey of world his-
tory would turn up a panoply of absolute monarchs and other tyrants. Such a list supplied
ample examples of the techniques arbitrary executives used to exploit the citizenry and
preserve their power. Indeed, all of the delegates had lived under an arbitrary executive’s
thumb. They despised King George III and his agents, the vilified colonial governors,
who chronically were at odds with the colonial legislature over who had what authority.
After the Revolution the new states had overreacted by creating weak governors. Based
on his brief experience as Virginia’s wartime governor, Jefferson dismissed the office as
a “cipher,” a nonentity. In the end the only acceptable model of the new American presi-
dent was, in the words of one historian, “sitting there in front of them . . . dignified, silent,
universally admired and respected . . . impartial, honored for his selfless devotion to the
common good, not intervening in, but presiding over, their councils—a presider, a presi-
dent. The executive was to be—George Washington.”9 The presence of a real-life example
of an ideal executive presiding over the Convention kept in view the kind of leadership
the delegates sought to institutionalize, yet it does not appear to have made their task any
easier. In the end, the delegates largely succeeded in fashioning an independent executive
branch that might be incapable of abusing authority and might actually moderate excesses
by an overreaching legislature. To achieve this, they designed several features. First, they
limited the scope of presidential responsibilities and particularly the office’s command
authority. (The presidency of the twenty-first century might appear to belie their success.

58 Part I: The Nationalization of Politics

In Chapter 7 we survey the evolution of the presidency and
reconcile the modern with the early office.) Article II states,
almost as an afterthought, that the president “shall take Care
that the Laws be faithfully executed.” Modern presidents
sometimes assert that the “take care” clause allows them to
undertake whatever actions the nation’s well-being requires
and are not expressly forbidden by the Constitution or pub-
lic law. Yet, unlike Congress’s expansive necessary and proper
clause that bolsters their discretion in performing a long list
of responsibilities, this mandate is not attached to any spe-
cific duty. Specifically, this new executive will appoint offi-
cers to fill vacancies in the executive department, receive and
appoint ambassadors, negotiate treaties, serve as commander
in chief of the army and navy, and periodically report to
Congress on the state of the nation. The second design fea-
ture attached a legislative check, or veto, to each presidential
duty. The Senate would confirm appointments and ratify any
treaties (in this instance with a two-thirds vote) before they
could take effect. Only Congress could declare war.

The third significant design feature was the veto, a neg-
ative action that would allow the executive to perform a
“checking” function on the legislature. Unlike some consti-
tutional executives, presidents cannot make policy or appro-
priate funds for programs, except as allowed in public laws.
By requiring a supermajority vote of two-thirds of the mem-
bers of each house to override a presidential veto, the Framers
carved out an important role for the modern president in
domestic legislation.

Over the next two centuries, the presidency became a
much more consequential office, both in its duties and in its authority. But at least with
respect to domestic policy, it has done so within a constitutional framework that has not
changed. Most of the expansion has occurred through statutory provisions delegating
policy responsibilities to the White House. If the Framers observed the president’s role
in domestic policy today, they might be shocked with what they found, but they would
quickly recognize it as an extension of the office they envisioned.

One cannot be so confident that the Framers would come to the same assessment
regarding the president’s dominant role in foreign policy and national defense. Beginning
with World War II the United States became a leader in international affairs. Whatever
advantages its status conferred, it also entailed numerous—well over a hundred—
military actions. None began with Congress declaring “war,” although all of the large-scale
conflicts—Korea, Vietnam, and both Iraq wars, among others—found Congress passing
resolutions backing the president’s actions that initiated the conflict. Some analysts argue

George Washington was an agent of change that
eighteenth-century republicans pined for—a military
commander who could seize power from arbitrary
executives and then surrender it to a popularly
elected, republic government.
Peter Horree/Alamy Stock Photo

59Chapter 2: The Constitution

that contemporary international affairs and modern military technology have eclipsed the
Constitution’s capacity to prescribe appropriate authority and responsibilities available to the
executive and legislature in modern wartime. In part the Constitution’s limited and general
language regarding foreign affairs has contributed to this uncertainty. During the George W.
Bush presidency, administration and congressional views on the constitutional prerogatives
for these branches during wartime diverged sharply. In Chapter 7 we consider occasions
during which White House officials have asserted that Congress has no role. Invariably the
federal courts have had to resolve these constitutional disputes and have groped for answers
along with the president and Congress. We take up these issues in detail later. The important
point here is that the Constitution contains gaps—at times chasms—that have Americans
more than two hundred years after the document was ratified asking fundamental questions
about the appropriate role of Congress and the presidency. Much of the uncertainty occurs
with subjects that Article II’s creation of the presidency failed to resolve.

At the Constitutional Convention, the delegates found that the only workable for-
mula for agreement between the nationalists and states’ rights advocates was to give both
sides pretty much what they wanted, an approach that yielded the Great Compromise,
and multiple routes for amending the Constitution. When the drafters turned to devising
a procedure for electing the president, they returned to arduous committee deliberations
and floor wrangling to find a compromise. This time Constitutional Convention poli-
tics produced arguably the most convoluted rules to be found in the Constitution: the
workings of the Electoral College.

As a device, the Electoral College tries to mix state, congressional, and popular par-
ticipation in the election process and in doing so has managed to confuse citizens for
more than two hundred years. In two of the past five elections the candidate who won
the Electoral College majority failed to win even a plurality of the popular vote. George
W. Bush in 2000 and Donald Trump in 2016 did so by having their popular votes fortu-
itously distributed across the states in such a fashion as to maximize their electoral votes.
Each state is awarded as many electors as it has members of the House and Senate. The
Constitution left it to the states to decide how electors are selected, but the Framers gen-
erally and correctly expected that the states would rely on statewide elections. If any can-
didate fails to receive an absolute majority (270) of the 538 votes in the Electoral College,
the election is thrown into the House of Representatives, which chooses from among
the three candidates who received the largest number of electoral votes. In making its
selection, the House votes by state delegation; each state gets one vote, and a majority is
required to elect a president (refer to Chapter 11 for more on the Electoral College). Until
the Twelfth Amendment corrected the most egregious flaws of the Electoral College, votes
for the president and the vice president were tallied side by side, resulting in a vice presi-
dential candidate almost winning the presidency in the election of 1800.

Designing the Judicial Branch
The Convention spent comparatively little time designing the new federal judiciary, a some-
what surprising development given that the Constitution gives the Supreme Court final

60 Part I: The Nationalization of Politics

jurisdiction in resolving differences between the state and national levels of government.
Armed with that jurisdiction and with the supremacy clause (Article VI), which declares
that national laws take precedence over state laws when both properly discharge their gov-
ernments’ respective responsibilities, the Supreme Court emerged from the Convention as a
major, probably underappreciated, lever for expanding the scope of national policymaking.

States’ rights advocates and nationalists did, however, spar over two lesser questions:
Who would appoint Supreme Court justices—the president or the Senate? And should
a network of lower federal courts be created, or should state courts handle all cases until
they reached the Supreme Court, the only federal court? The Convention split the differ-
ence over appointments by giving the president appointment powers and the Senate con-
firmation powers, and they left it to some future Congress to decide whether the national
government needed its own lower-level judiciary. The First Congress exercised this option
almost immediately, creating a lower federal court system with the Judiciary Act of 1789.

An important issue never quite resolved by the Constitutional Convention was
the extent of the Court’s authority to overturn federal laws and executive actions as
unconstitutional—a concept known as judicial review. Although the supremacy clause
appears to establish the Court’s authority to review state laws, there is no formal lan-
guage extending this authority to veto federal laws. Yet many of the Framers, including
Hamilton, claimed that the Constitution implicitly provides for judicial review. Later in
life Madison protested that he never would have agreed to a provision that allowed an
unelected branch of government to have the final say in lawmaking. But in one of the great
ironies of American history, Madison was a litigant in an early Supreme Court decision,
Marbury v. Madison (1803), in which the Court laid claim to the authority to strike down
any legislation it deemed unconstitutional.10 In Chapter 9 we return to this historic case
and its profound effects on the development of the judiciary’s role in policymaking.

Amending the Constitution
In their efforts to provide a suitable means for amending the Constitution, the Framers broke
new ground. (Amending the Articles of Confederation required the unanimous consent of
the states, and the constitution creating the French republic in 1789 contained no amendment
procedure whatsoever.) Perhaps the futility of trying to win unanimous consent for chang-
ing the Articles persuaded the Framers to find a more reasonable method for amending the
Constitution, one that did not require a full convention like the Philadelphia Convention. Yet
they did not want to place the amendment option within easy reach of a popular majority.
After all, some future majority frustrated by executive and judicial vetoes might try to change
the Constitution rather than accommodate its opponents. So, again, the Framers solved the
dilemma by imposing heavy transaction costs on changing the Constitution.

The concept of providing for future amendment of the Constitution proved less
controversial than the amendment procedure itself. Intent on preserving their hard-
won gains in the face of future amendment proposals, both the nationalists and states’
rights advocates approached this matter warily. Delegates from small states insisted on

61Chapter 2: The Constitution

endorsement of amendments by a large number of states, whereas the nationalists argued
that the Constitution derived its legitimacy directly from the citizenry and that the citi-
zens alone should approve any change. Unable to muster a majority for either position,
the delegates again used the formula of accepting parts of both proposals. As a result, the
Constitution allows an amendment to be proposed either by a two-thirds vote of both
houses of Congress or by an “application” from two-thirds of the states. Enactment occurs
when three-fourths of the states, acting either through their state legislatures or in special
conventions, accept the amendment (represented in Figure 2.4).

Since its ratification, the Constitution has been amended twenty-seven times. In every
instance, Congress initiated the process, and in all but one case, the state legislatures did the
ratifying. (The Constitution and its amendments appear in the appendix.) Six additional
amendments—including the Equal Rights Amendment (covered in Chapter 4, “Civil
Rights”)—were sent to the states but failed to win endorsement from a sufficient number.
The paucity of near misses is deceiving, however. Each year, dozens of amendments are
proposed in Congress, but they fail to go any further either because they fail to attract the
requisite two-thirds support in both chambers or because supporters foresee little chance
of success in the states. During the 108th Congress (2003–2004), for example, members
proposed amendments restricting marriage to a man and a woman; ensuring “God” is

� FIGURE 2.4 Process for Amending the Constitution

Stage 1:
Amendment Proposal

Amendments may be
proposed by

A two-thirds vote of both
houses of Congress

A constitutional convention
called by Congress on

petition of two-thirds of the
fifty states

Stage 2:
Amendment Ratification


Amendments may be
ratified by

Three-fourths of
special constitutional
conventions called by

the fifty states

Three-fourths of the
fifty state legislatures

Used for all
amendments but

the Twenty-first

Used only for the
Twenty-first Amendment

(repeal of Prohibition)

Never used

62 Part I: The Nationalization of Politics

included in the Pledge of Allegiance; and providing a mechanism for Congress to replenish
its membership should more than a quarter of its members be killed, as in a terrorist attack.

Substantive Issues
In remapping federal-state responsibilities the Framers largely intended to eliminate the
collective action dilemmas that had plagued states’ efforts to cooperate under the Articles
of Confederation. The states had to surrender some autonomy to the national government
to eliminate the threat of free riding and reneging on collective agreements.

Foreign Policy
Trade and foreign policy were at the top of the list of federal-state issues the Framers
wanted the Constitution to solve. Shortly after the Revolutionary War, the states had
found themselves engaged in cutthroat competition for foreign commerce. The Framers
solved this dilemma by placing foreign policy under the administration of the president
and giving Congress the explicit legislative authority to regulate commerce. As for com-
mon defense and security, the Framers placed those responsibilities squarely on the shoul-
ders of the national government. The Constitution (Article I, Section 10) forbids any state
from entering into a foreign alliance or treaty, maintaining a military during peacetime, or
engaging in war unless invaded.

Interstate Commerce
Relations among the states, a longtime source of friction, also figured prominently in the
Framers’ deliberations. As a result, Article I, Section 10, prohibits states from discriminat-
ing against each other in various ways. They may not enter into agreements without the
consent of Congress, tax imports or exports entering local ports, print money not backed
by gold or silver, or make laws prejudicial to citizens of other states.

The Framers balanced these concessions with important benefits for the states. The
new national government would assume outstanding debts the states had incurred during
the war, protect the states from invasion and insurrection, and guarantee that all states
would be governed by republican institutions.

All these provisions of the Constitution are less well known than those creating and
conferring powers on the several branches of government or the amendments known as
the Bill of Rights. But the fact that Americans take them for granted reflects their success,
not their irrelevance. With these provisions the Framers solved the most serious collec-
tive action dilemmas confronting the young nation, including trade. Taken together, the
provisions to prevent states from interfering with commerce that crossed their borders
established the essentials of a common market among the former colonies. As a result, the
Constitution contributed vitally to the nation’s economic development during the next
century, not only through its directives on interstate commerce but also through the other
trade- and business-related provisions in Article I. One such provision prevents the gov-
ernment from passing laws impairing the obligations of private contracts; others mandate
that the national government create bankruptcy and patent laws.

63Chapter 2: The Constitution

Throughout America’s history the issue of race has never been far removed from politics.
It certainly was present in Philadelphia, despite some delegates’ best efforts to prevent a
regional disagreement on slavery from thwarting the purpose of the Convention. But how
could delegates construct a government based on popular sovereignty and inalienable
rights without addressing the fact that one-sixth of Americans were in bondage? They
could not. Slavery figured importantly in many delegates’ private calculations, especially
those from the South. At several junctures, it broke to the surface.

The first effort to grapple with slavery was the most acrimonious and threatening. How
should enslaved people be counted in allocating congressional representatives to the states?
Madison had persuaded delegates to postpone this issue until they had finalized the design
of the new Congress, but the issue soon loomed again. Trying to maximize their represen-
tation in the population-based House of Representatives, southern delegates insisted that
enslaved people were undeniably people and should be included fully in any population
count to determine representation. Northerners resisted this attempted power grab by
arguing that because enslaved people did not enjoy the freedom to act as autonomous cit-
izens, they should not be counted at all. In the end each side accepted a formula initially
used to levy taxes under the Articles of Confederation, a plan that assigned states their
financial obligations to the national government proportionate to population. Accordingly,
the Constitution apportioned each state’s seats in the House of Representatives based on
population totals in which each slave would count as three-fifths of a citizen.*

Later in the Convention some southern delegates insisted on two guarantees for
their “peculiar institution” as conditions for remaining at the Convention and endors-
ing the Constitution in the ratification debates. One was the unrestricted right to con-
tinue importing enslaved people. The delegates from northern states, most of which had
outlawed slavery, preferred to leave the issue to some future government. But in the end
they conceded by writing into the Constitution a ban on regulation of the slave trade
until 1808.† (A total ban on slave imports went into effect on January 1, 1808.) Late in the
Convention southerners introduced the Constitution’s second slavery protection clause. It
required northern states to return runaway enslaved people to their masters. After some
delegates first resisted and then softened the language of the clause, the proposal passed.

Why did the delegations from the more numerous northern states cave in to the
southerners? The handling of the slavery issue was likely another instance of intense

*The three-fifths rule had been devised under the Articles to resolve a sectional dispute over apportioning
states’ tax contributions according to population. At that time the northerners had a stake in recognizing the
humanity of enslaved people—if enslaved people were people, their numbers should be fully counted in appor-
tioning tax obligations. Southerners had countered that, because they marketed enslaved people as property,
enslaved people should be counted no more than any other property. After extended haggling, the groups
agreed to add three-fifths of the number of enslaved people to a state’s free population.
†The committee that drafted this language proposed that the ban on regulation end in 1800, but a coalition of
New Englanders and southerners added eight years to the ban. Only Madison spoke out against extending the
deadline. The delegates from Virginia, all of whom had owned enslaved people at one time or another, voted
against extension.

64 Part I: The Nationalization of Politics

private interests prevailing over more diffuse notions of
the public good. Reporting to Jefferson in Paris, Madison
wrote that “South Carolina and Georgia were inflexible on
the point of enslaved people,” implying that without the slave
trade and fugitive provisions they would not have endorsed the
Constitution. And because the southerners’ preferences were
secure under the Articles of Confederation, their threat to defect
during the subsequent ratification campaign was credible. After
launching anguished, caustic criticisms of southerners’ demands
during floor debates, the northerners cooled down and reas-
sessed their situation. In the end, they conceded many of their
antislavery provisions and adopted a more strategic posture that
would allow them to gain something in exchange.

With neither side able to persuade the other to adopt its
preferred position and yet with each effectively able to veto
ratification, both sides began searching for a mutually accept-
able alternative. Their first such attempt had produced the
Great Compromise. This time the solution took the form of a
logroll—a standard bargaining strategy in which two sides
swap support for dissimilar policies. In the end, New England
accommodated the South by agreeing to two provisions:
Article I, Section 9, protecting the importation of enslaved peo-

ple until at least 1808; and Article IV, Section 2, requiring that northern states return fugitive
enslaved people. In return, southern delegates dropped their opposition on an altogether
different issue that was dear to the commercial interests of the northern states. Article I,
Section 8, allows Congress to regulate commerce and tax imports with a simple majority.

Women were scarcely mentioned at the Constitutional Convention. There are several
reasons for this. Perhaps overriding any other is that women’s political rights had simply
not become an issue in the late 1700s. To the degree women’s rights were an issue any-
where, it addressed men and women’s unequal status in marriage. Divorce was difficult,
and in many states, men could confiscate their wife’s property. Second, the Framers were
much more concerned with establishing proper functioning governmental institutions
that had the capacity to act without becoming dictatorial. Individual liberties were clearly
a secondary issue. Indicative of this, the Bill of Rights were added to the Constitution as
amendments after ratification.

Finally, the actual language of the Constitution is consistently inclusive. Throughout,
rights and prerogatives are guaranteed to persons and citizens, not men. Eligibility to serve
as a member of Congress, for example, begins with the statement “No Person shall be a
Representative.” Elsewhere: “The Citizens of each State shall be entitled to all Privileges

Abigail Adams was an early feminist, who urged her
husband, John Adams, to consider women’s rights
in marriage when creating the Constitution.
The Granger Collection, NYC — All rights reserved.

65Chapter 2: The Constitution

and Immunities of Citizens in the several States.” A few passages of the Constitution
use the pronoun he (in each instance, however, the masculine pronoun refers back to a
gender-free noun), which courts interpreted to include everyone.

Abigail Adams, the wife of John Adams and the mother of John Quincy Adams, has
often been celebrated as an early feminist for urging her husband to consider women’s
rights when drafting the Constitution. Her numerous letters to her husband and lead-
ers, such as Thomas Jefferson, exhibit a candor and insight that make them compelling
to modern readers as well. To her husband, who was away attending the Continental
Congress, she wrote, “In the new code of laws which I suppose it will be necessary for you
to make, I desire you would remember the ladies, and be more generous to them than
your ancestors. Do not put such unlimited power in the hands of husbands. Remember, all
men would be tyrants if they could.” This passage often has been celebrated as one of the
first expressions of women’s political rights in America. But, in fact, Adams was address-
ing various civil laws that allowed husbands to confiscate their wives’ property and made
divorce all but impossible. Lack of a woman’s rights in marriage—not suffrage—was the
grievance of these early feminists. Suffrage would not be seriously addressed for another
half century, not until the first women’s rights gathering in 1848 in Seneca Falls, New York.
(We review the history of women’s civil rights in Chapter 4.)

The Fight for Ratification
The seventh and final article of the Constitution spells out an important procedure
endorsed by delegates in the final days of the Convention: “The Ratification of the
Conventions of nine States, shall be sufficient for the Establishment of this Constitution
between the States so ratifying the Same.” Everyone knew that this deceptively straight-
forward provision was critical for the success of the enterprise. The delegates impro-
vised by adapting the nine-state rule used by the Articles for passing normal legislation,
even though the Articles did not provide for amendment. And the ratification provision
withdrew ratification authority from the state legislatures, which might have misgivings
about surrendering autonomy, and gave it instead to elective special conventions. In sum,
the delegates succeeded in a bit of legalistic legerdemain—appearing to conform to the
requirements of the existing Constitution while breaking radically from it.

The Federalist and Antifederalist Debate
At the close of the Convention, only three delegates refused to sign the Constitution. This
consensus, however, is misleading; others who probably would have objected left early,
and many prominent political leaders such as Virginians Patrick Henry and Richard
Henry Lee had refused even to participate.

Over the next year every state but Rhode Island (it held out until 1790) elected delegates
to state conventions that proceeded to dissect the Constitution and ponder its individual
provisions. This was truly a time of national debate over the future of the country. As one

66 Part I: The Nationalization of Politics

observer noted, “Almost every American pen . . . [and] peasants and their wives in every
part of the land” began “to dispute on politics and positively to determine upon our liber-
ties.”11 On a lighter note, the Boston Daily Advertiser, responding to General Washington’s
call for public debate, admonished its readers: “Come on brother scribblers, ’tis idle to lag!
The Convention has let the cat out of the bag.”12 Delegates to the state conventions concen-
trated, predictably, on the concerns of their states and communities. Southern states care-
fully inspected each article for a northern avenue of attack on their “peculiar institution” of
slavery. Finding none, all except North Carolina lined up behind the Constitution.

Constituencies and their delegates similarly aligned themselves for or against the
Constitution according to its perceived impact on their pocketbooks. Small farmers,
struck hard by declining markets and high property taxes after the war, had succeeded in
gaining sympathetic majorities in many of the state legislatures and so looked suspiciously
on the proposed national government’s new role in public finance and commerce. Under
pressure from small farmers, many state legislatures had printed cheap paper money
(making it easier for the farmers to pay off their debts), overturned court decisions unfa-
vorable to debt-laden farmers, and provided some with direct subsidies and relief. Thus
these constituencies were reluctant to see their state legislatures subordinated to some
future national policy over currency and bankruptcy.

In the public campaign for ratification these issues tended to be reduced to the rhet-
oric of nationalism, voiced by the Federalists, versus the rhetoric of states’ rights, voiced
by the Antifederalists. The divisiveness characterizing the Philadelphia Convention thus

continued. But the labels given the
two sides were confusing. Although
they consistently distinguished
the Constitution’s supporters and
opponents, the labels confused the
positions of these camps on the
issue of federalism. Federalism, a
topic so central to understanding
America’s political system that we
devote all of the next chapter to it,
refers to the distribution of author-
ity between the national and state
governments. Many of those who
opposed ratification were more pro-
tective of state prerogatives, as the
term federalist implies, than were
many of the prominent “Federalists.”
Appreciating the depth of state loy-
alties, Madison and his colleagues
early on tactically maneuvered

With the New York ratification narrowly divided, proratification forces staged
a massive rally. The parade was graced by a “ship of state,” an already
well-developed metaphor. At the time, New Yorker Alexander Hamilton was
widely regarded as one of the Constitution’s most effective sponsors.
Copyright © North Wind Picture Archives — All rights reserved.

67Chapter 2: The Constitution

to neutralize this issue by claiming that the Constitution provided a true federal system,
making those seeking ratification Federalists. Their success in expropriating this label
put their opponents at a disadvantage in the public relations campaign. One disgruntled
Antifederalist proposed that the labels be changed so that Madison and his crowd would
be called the “Rats” (for proratification) and his side the “Antirats.”

Although in the end the Federalists prevailed and are today revered as the nation’s
“Founders,” the Antifederalists included a comparable number and quality of proven
patriots. Foremost among them was Patrick Henry, who led his side’s counterattack.
With him were fellow Virginians Richard Henry Lee, George Mason, and a young James
Monroe, who would become the nation’s fifth president under the Constitution he had
opposed. Other famous outspoken opponents included Boston’s Revolutionary War hero
Samuel Adams and New York governor George Clinton.

In their opposition to the Constitution, the Antifederalists raised serious theoretical
objections—ones that can still be heard more than two hundred years later. They argued that
only local democracy, the kind found in small homogeneous communities, could approach
true democracy. The United States, they asserted, already was too large and too diverse
to be well ruled by a single set of laws. Turning their sights to the Constitution itself, the
Antifederalists argued that a stronger national government must be accompanied by explicit
safeguards against tyranny. Specifically, the Constitution needed a bill of rights—a famil-
iar feature of most state constitutions. Some delegates to the Convention proposed a bill of
rights, but Madison and others had argued that it was unnecessary because the Constitution
did not give the national government any powers that could be construed as invading the
citizenry’s rights. This argument, however, worked better at the Convention than it did in
the public campaign. The Antifederalists quickly realized they had identified a chink in
the Constitution’s armor and began pounding the issue hard. Even Madison’s ally Jefferson
wrote him from France insisting that individual rights were too important to be “left to infer-
ence.” Suddenly on the defensive, Madison made a strategic capitulation and announced that
at the convening of the First Congress under the new Constitution, he would introduce con-
stitutional amendments providing a bill of rights. His strategy worked; the issue receded. In a
sense, though, the Antifederalist strategy had worked as well. Madison kept his promise, and
by 1791, the Constitution contained the Bill of Rights (listed in Table 2.2).

In June 1788 New Hampshire became the ninth and technically decisive state to rat-
ify the Constitution. But Virginia and New York had still not voted, and until these two
large, centrally located states became a part of the Union, no one gave the new government
much chance of getting off the ground. But by the end of July both states had narrowly rat-
ified the Constitution, and the new Union was a reality.

Despite their efforts, Madison and fellow nationalists won only a partial victory with
the launching of the Constitution. The nation still added up to little more than a collec-
tion of states, but the mechanisms were put in place to allow the eventual emergence of
the national government. For example, by basing the Constitution’s adoption on the con-
sent of the governed rather than endorsement by the states, the nationalists successfully

68 Part I: The Nationalization of Politics

denied state governments any claim that they could ignore national policy. Over the next
several decades, although state politicians would from time to time threaten to secede or
to “nullify” objectionable federal laws, none of the attempts at nullification reached a full-
fledged constitutional crisis until the Civil War in 1861. With the Union victory, this threat
to the national government ended conclusively. Yet, as we shall see in the next chapter,
“Federalism,” until the twentieth century national authority remained limited by modern
standards. Nowhere is this more evident than in the domains of civil rights and civil liber-
ties, the subjects of Chapters 4 and 5.

The Influence of The Federalist
Aside from eventually yielding a new constitution, the ratification debates fostered
another national resource: eighty-five essays collected under the title The Federalist.
Published under the shared pseudonym Publius in 1787 and 1788, the essays were writ-
ten by Alexander Hamilton (who wrote the majority), John Jay (who wrote five), and

TABLE 2.2 The First Ten Amendments to the Constitution: The Bill of Rights


I Guarantees freedom of religion, speech, assembly, and press, and the
right of people to petition the government for redress of grievances

II Protects the right of states to maintain militias

III Restricts quartering of troops in private homes

IV Protects against “unreasonable searches and seizures”

V Ensures the right not to be deprived of “life, liberty, or property, without
due process of law,” including protections against double jeopardy,
self-incrimination, and government seizure of property without just

VI Guarantees the right to a speedy and public trial by an impartial jury

VII Ensures the right to a jury trial in cases involving the common law
(judge-made law originating in England)

VIII Protects against excessive bail or cruel and unusual punishment

IX Provides that people’s rights are not restricted to those specified in
Amendments I–VIII

X Reiterates the Constitution’s principle of federalism by providing that
powers not granted to the national government are reserved to the
states or to the people

69Chapter 2: The Constitution

James Madison (who arguably wrote the best). In one of history’s interesting twists of fate,
Hamilton initially recruited fellow New Yorker William Duer to join the Publius team.*

Because their immediate purpose was to influence the delegates to the New York con-
vention, where ratification was in trouble, the Federalist essays first appeared in New York
City newspapers. At one point Hamilton and Madison were cranking out four essays a
week, prompting the Antifederalists to complain that by the time they had rebutted one
argument in print, several others had appeared. Reprinted widely, the essays provided rhe-
torical ammunition to those supporting ratification.†

Whatever their role in the Constitution’s ratification, The Federalist Papers, as they are
also called, have profoundly affected the way Americans then and now have understood
their government. A few years after their publication, Thomas Jefferson, describing the
curriculum of the University of Virginia to its board of overseers, declared The Federalist
to be indispensable reading for all undergraduates. It is “agreed by all,” he explained, that
these essays convey “the genuine meaning” of the Constitution.

The Theory Underlying the Constitution
Two of Madison’s essays, Federalist No. 10 and Federalist No. 51, offer special insights
into the theory underlying the Constitution. (The full text of these essays is available in
the appendix.) In different ways, each essay tackles the fundamental problem of self-
governance, which Madison poses in a famous passage from Federalist No. 51:

If men were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary.
In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.

The last goal is tricky. Federalist No. 10 tackles the problem by both exploring the like-
lihood that tyranny by the majority would arise within a democracy and identifying a
solution. It is a powerful, cogent argument grounded in logic. Federalist No. 51 deals with
the problem of keeping government officeholders honest and under control. The solution

*Duer’s submissions were judged inadequate, however, and Hamilton turned to Madison. Duer, a professor at
Columbia University, later found his appropriate medium in a highly successful American government text-
book in which he introduced students to the already famous Federalist essays, to which he almost contributed.
Writing perhaps the first textbook on American government in 1833, William Alexander Duer penned a heart-
felt dedication to James Madison, which is reproduced as the front piece, just after Logic’s title page.
†Although they became famous, the Federalist essays, according to most historians, had a negligible impact on
the outcome of the ratification process. Perhaps too many hard economic interests were in play for abstract
arguments about the general welfare to do more than justify and dress up positions grounded firmly in self-
interests. The New York convention shifted toward ratification only after New York City threatened to secede
from the state if the vote went against ratification.

70 Part I: The Nationalization of Politics

lies in pitting ambitious politicians against one another through the Constitution’s separa-
tion of powers and checks and balances. This way, politicians can counteract one another’s
temptation to engage in mischief. Whatever their differences, these two essays can be read
as following parallel paths—one at the societal level, the other at the governmental level—
toward the same destination of a self-regulating polity free from tyranny.

Federalist No. 10
Madison’s first and most celebrated essay appeared in the November 24, 1787, issue of
the New York Daily Advertiser. Federalist No. 10 responds to the strongest argument the
Antifederalists could muster—that a “large Republic” cannot long survive. This essay
borrows from the writings of David Hume, but over the course of a decade of legislative
debate and correspondence, Madison had honed his argument to fit the American case.13
Indeed, Madison had made the argument before—at the Constitutional Convention
when defending the Virginia Plan in a floor debate.

The major task Madison sets out for himself in Federalist No. 10 is to devise a republic
in which a majority of citizens will be unable to tyrannize the minority. Madison wastes
no time identifying the rotten apple. It is factions, which he describes as “mortal diseases
under which popular governments have everywhere perished.” He defines a faction as “a
number of citizens, whether amounting to a majority or minority of the whole, who are

united and actuated by some common impulse of passion,
or of interest, adverse to the rights of other citizens, or to
the permanent and aggregate interests of the commu-
nity” (emphasis added). Madison’s factions appear to have
many of the attributes of modern-day interest groups and
even political parties.

Madison then identifies two ways to eliminate
factions—authoritarianism and conformism—neither of
which he finds acceptable. Authoritarianism, a form of
government that actively suppresses factions, is a remedy
worse than the disease. In a famous passage of Federalist
No. 10, Madison offers an analogy: “Liberty is to faction
what air is to fire, an aliment without which it instantly

Conformism, the second solution, is, as Madison
notes, “as impracticable as the first would be unwise.”
People cannot somehow be made to have the same goals,
for “the latent causes of faction are . . . sown in the nature
of man.” Thus two individuals who are precisely alike in
wealth, education, and other characteristics will none-
theless have different views on many issues. Even the
“most frivolous and fanciful distinction” can “kindle their

When James Madison was introduced with the accolade
“father of the Constitution,” he frequently demurred,
probably less from modesty than from disagreement
with many of its provisions.
White House Historical Association

71Chapter 2: The Constitution

unfriendly passions,” Madison observes, but most of the important political cleavages that
divide a citizenry are predictably rooted in their life circumstances. In another famous
passage, the author anticipates by nearly a century Karl Marx’s class-based analysis of
politics under capitalism:

But the most common and durable source of faction has been the various and
unequal distribution of property. Those who hold and those who are without
property have ever formed distinct interests in society. . . . A landed interest, a
manufacturing interest, a mercantile interest, a moneyed interest, with many
lesser interests, grow up of necessity in civilized nations, and divide them into
different classes, actuated by different sentiments and views.*

If the causes of faction cannot be removed without snuffing out liberty, then one
must control their effects. Madison identifies two kinds of factions—those composed of
a minority of the citizenry and those composed of a majority—that have to be controlled
in different ways. During the late eighteenth century, the ubiquitous problem of factional
tyranny occurred at the hands of the monarchy and aristocracy, a “minority” faction, for
which democracy provides the remedy. A minority faction “may clog the administration,
it may convulse the society; but it will be unable to execute and mask its violence under
the forms of the Constitution.” Democracy, however, introduces its own special brand of
factional tyranny—that emanating from a self-interested majority. In Madison’s era many
people—especially those opposed to reform—ranted that majority rule equaled mob rule.
Thus supporters of the new constitutional plan had to explain how a society could give
government authority to a majority without fear that it would trample on minority rights.
Madison explained: “To secure the public good and private rights against the danger of . . .
a [majority] faction, and at the same time to preserve the spirit and the form of popular
government, is then the great object to which our inquiries are directed.”

Parting ways with some of the leading political philosophers of his era, Madison dis-
misses direct democracy as the solution:

There is nothing to check the inducements to sacrifice the weaker party or an
obnoxious individual. Hence it is that such democracies have ever been spec-
tacles of turbulence and contention; have ever been found incompatible with
personal security or the rights of property; and have in general been as short in
their lives as they have been violent in their deaths.

So much for town meetings.

*In an earlier version of this passage, delivered at the Convention in defense of the Virginia Plan, Madison had
added that those who owned enslaved people and those who did not had distinct and antithetical interests. He
may well have omitted this reference to slavery here because it had proved controversial with southern dele-
gates. After all, this is a public argument intended to persuade readers to support adoption of the Constitution.

72 Part I: The Nationalization of Politics

Madison contends that the republican form of government, in which elected repre-
sentatives are delegated responsibility for making governmental decisions, addresses
the tyranny of the majority problem in two ways. First, representation dilutes the fac-
tious spirit. Madison does not trust politicians to be more virtuous than their constitu-
ents, but he recognizes that, to get elected, they will tend to moderate their views to appeal
to a diverse constituency. Here Madison subtly introduces his size principle, on which
the rest of the argument hinges: up to a point, the larger and more diverse the constitu-
ency, the more diluted is the influence of any particular faction on the preferences of the

In a legislature composed of representatives elected from districts containing diverse
interest, it is unlikely to form a majority coalition of factions that so dominates the institu-
tion that it can deny rights to minority factions. This line of reasoning allows Madison to
introduce a second distinct virtue of a republic. Unlike a direct democracy, it can advanta-
geously encompass a large population and a large territory. As Madison argues,

Extend the sphere, and you take in a greater variety of parties and interests; you
make it less probable that a majority of the whole will have a common motive
to invade the rights of other citizens; or if such a common motive exists, it will
be more difficult for all who feel it to discover their own strength and to act in
unison with each other.

In other words, their differences will pose a benign collective action problem. Any
attempted collusion would confront such steep transaction costs that any efforts to engage
in mischief would inevitably be frustrated.

What has Madison accomplished here? He has turned the Antifederalists’ “small is
beautiful” mantra on its head by pointing out that an encompassing national government
would be less susceptible to the influence of factions than would state governments: “A
rage for paper money, for an abolition of debts, for an equal division of property, or for
any other improper or wicked project, would be less apt to pervade the whole body of the
Union than a particular member of it.” A geographically large republic would encompass
dispersed, diverse populations, thereby imposing serious transaction costs on their rep-
resentatives in maintaining a majority coalition and minimizing the prospect of majority
tyranny. Madison concludes: “In the extent and proper structure of the Union, therefore,
we behold a republican remedy for the disease most incident to republican government.”

Until the twentieth century, Federalist No. 10 attracted less attention than did some of
its companion essays. Yet as the nation has grown in size and diversity, the essay won new
prominence for the prescience with which Madison explained how such growth strength-
ens the republic. This Madisonian view of democracy often is referred to as pluralism. It
welcomes society’s numerous diverse interests and generally endorses the idea that those
competing interests most affected by a public policy will have the greatest say in what the
policy will be.

73Chapter 2: The Constitution

Federalist No. 51
By giving free expression to all of society’s diversity, Federalist No. 10 offers an essentially
organic solution to the danger of majority tyranny. Federalist No. 51, by contrast, takes a
more mechanistic approach of separating government officers into different branches and
giving them the authority to interfere with each other’s actions. The authority of each branch
must “be made commensurate to the danger of attack,” Madison asserts. As for incentive:
“Ambition must be made to counteract ambition. The interest of the man must be connected
with the constitutional rights of the place.” In other words, the Framers’ efforts will have
failed if future generations of politicians do not jealously defend the integrity of their offices.

Because popular election is the supreme basis for legitimacy and independence in a
democracy, no constitutional contrivances can place appointive offices on an equal foot-
ing with elective offices. Madison explains:

In republican government, the legislative authority necessarily predominates.
The remedy for this inconvenience is to divide the legislature into different
branches; and to render them, by different modes of election and different prin-
ciples of action, as little connected with each other as the nature of their com-
mon functions and their common dependence on the society will admit.

Bicameralism is intended to weaken the legislature’s capacity to act too quickly and
impulsively, but even so it may not prevent the legislature from encroaching on the other
branches. Madison offers the president’s veto as a strong countervailing force and specu-
lates that, by refusing to override the president’s veto, the Senate might team up with the
executive to keep the popularly elected House of Representatives in check. Madison even
finds virtue in the considerable prerogatives reserved to the states: “In a compound repub-
lic of America, the power surrendered by the people is first divided between two distinct
governments. . . . Hence a double security arises to the rights of the people. The different
governments will control each other, at the same time that each will be controlled by itself.”

Could this be the same James Madison who wanted to abandon the Convention rather
than agree to a Senate elected by the state legislatures, the same man who had wanted
Congress to have an absolute veto over state actions? Madison’s Virginia Plan had vested
ultimate authority in a popularly elected national legislature, and this model of a legisla-
ture became the House of Representatives. So why is he commending a Constitution that
severely constrains this institution’s influence over policy?

Madison probably was playing to his audience.14 Federalist No. 51 seeks to reassure
those fence-sitters listening to Antifederalist propaganda that the Constitution would
take a giant step down the short path to tyranny. After all, the Antifederalists were pre-
senting the specter of a powerful and remote national government and, within it, the
possible emergence of a junta composed of unelected senators and an indirectly elected
president bent on usurping the authority of the states, undermining the one popularly
elected branch of government (the House of Representatives), and ultimately subjugating

74 Part I: The Nationalization of Politics

the citizenry. Madison is countering with a portrait of a weak, fragmented system that
appears virtually incapable of purposive action, much less of hatching plots. He must have
grimaced as he (anonymously) drafted the passage extolling the Constitution’s checks on
his House of Representatives.

In summary, Federalist No. 10 conveys the theory of pluralism that guided the
Constitution’s chief architect; Federalist No. 51 explores how and why the governmental
system that emerged from the political process in Philadelphia might actually work. Since
these essays were written, Madison’s insight into the operation of the Constitution has
been largely borne out.

Both the pluralism of competing interests and separated institutions have been judged
less favorably by many modern students of American politics. With authority so frag-
mented, they argue, government cannot function effectively. And by adding a layer of
institutional fragmentation on top of pluralism, the Framers simply overdid it. The result
is an inherently conservative political process in which legitimate majorities are frequently
frustrated by some minority faction that happens to control a critical lever of government.
Furthermore, if the logic of Federalist No. 10 is correct, Americans do not need all of this
constitutional architecture of checks and balances to get the job done. Critics also point
to the many other stable democracies throughout the world that function well with insti-
tutions designed to allow majorities to govern effectively. Would Madison have privately
agreed with this critique? Probably so—after all, his Virginia Plan incorporated those
checks and balances necessary to foster the healthy competition of factions and no more.

Designing Institutions for
Collective Action: The Framers’ Tool Kit
The careful attention that Madison gave to the design of Congress and the presi-
dency in order to channel politics into a productive course preoccupied everyone at the
Constitutional Convention. What constitutional arrangements will allow future genera-
tions to stand the best chance of solving their collective problems with the least confor-
mity costs or risk of falling into tyranny? Clearly the majority of delegates recognized the
need for institutions that could act more decisively, but they feared equally of establish-
ing one that might someday intrude too far into their private lives. This latter concern
explains why so many delegates who subsequently attended their states’ ratification con-
ventions favored adding a bill of rights to limit the ability of national majorities to demand
religious and political conformity.

In devising the several branches of the national government and its relations with the
states, the Framers relied on design principles that instituted varying trade-offs between
the transaction and conformity costs introduced in the last chapter to fit the purposes of
the institutions they were creating. And they sought balance—keeping the branches in
“their proper orbits”—so that none would gradually gain a permanent advantage over
the others.

75Chapter 2: The Constitution

By intent, the Constitution provides only a general framework for government. As
its institutions have evolved over the past two centuries, the same design principles have
shaped their subsequent development. Consequently, the principles summarized in
Table 2.3 are just as useful for dissecting the internal organization of the modern House of
Representatives as they are for studying the Framers’ plan. The Framers’ tool kit informs
our analyses throughout the text—especially those chapters that delve into the logic of the
governmental system.*

This refers to the authority of one actor to prescribe the actions of another. Unlike the
other design concepts presented here, command is unilateral. It cuts through both coor-
dination and prisoner’s dilemma problems by allowing one of the actors to impose a

*We do not present this list of design principles as exhaustive. One can think of other principles—such as the
principles in the Bill of Rights prohibiting certain classes of government actions—but we do find that the tool
kit’s principles are indispensable for understanding how America’s political institutions work the way they do.

TABLE 2.3 The Framers’ Tool Kit


Command Authority to dictate others’

President’s commander-in-
chief authority

Veto Authority to block a proposal
or stop an action

President’s veto; Senate
confirmation of the
president’s appointments;
judicial review

Agenda control Authority to place proposals
before others for their
decision, as well as
preventing proposals from
being considered

Congress presenting
enrolled bill to president;
congressional committees’
recommendations to the full

Voting rules Rules prescribing who
votes and the minimum
number of votes required to
accept a proposal or elect a

Supreme Court decisions;
Electoral College; selection
of the Speaker of the House
of Representatives

Delegation Authority to assign an agent
responsible to act on your


76 Part I: The Nationalization of Politics

solution or policy. Command certainly achieves efficiencies in reducing transaction costs,
but it does so by imposing potentially huge conformity costs on those who prefer some
other policy or course of action. For decades, Cuba’s Fidel Castro banned whole genres of
music from the radio. For Hobbes, the command authority conferred (by God, or so they
liked to argue!) prevented society from deteriorating into anarchy.*

The Framers, and republican theorists before them, sought other institutional
arrangements that would enable efficiency yet minimize the conformity costs imposed
by command. Consequently, “command” was rarely used in designing the Constitution.
The only provision (Article II, Section 2) that comes close makes the president “the com-
mander in chief of the army and navy.” The military, then and now, is the one component
of government designed to place a premium on action over deliberation. Hence, the
authority to issue commands flows down the military branches’ “command structure.”
Any squad member under enemy fire can appreciate the value of not having others in the
unit calculating whether to cover for their buddies or to engage in free riding.

A situation resembling command authority sometimes occurs during crises when the
public looks to leaders—the president, governors, and other executives—for guidance.
Earlier we introduced focal coordination as a solution to the class of coordination prob-
lems in which success depends on cooperation, but the participants do not know what
others are doing so that they can join in. In this situation, people need a trusted leader
to coordinate their efforts. This situation arose dramatically during the early days of the
pandemic in 2020. People were getting sick, and health organizations were estimating that
millions of people might die from COVID-19. What to do or, more precisely, what not to
do to protect oneself and family? When they looked to the White House for leadership,
they instead got denials (“it will suddenly disappear”), excuses (“the Obama administra-
tion did not prepare us for this”), and questionable medical advice—the worst being to
take a shot of chlorine! Instead they looked to their states’ governors who instituted a quar-
antine, shut down schools and businesses, and told us what we must do to remain safe.

Understandably, people appreciated their efforts more than those of President Trump.
In Figure 2.5 we can compare the approval ratings by survey respondents to the president’s
and their state governor’s handling of the pandemic. In every state the public rated their
governors better than the White House.

During this era of divided party control of government in Washington, presidents
have increasingly relied on executive orders to change or implement a policy. Historically,
executive orders were authorized by Congress. In the late nineteenth century presi-
dents were given the authority to unilaterally expand the types of federal jobs (e.g., let-
ter carriers) that would fall under the newly created civil services system. The president
issued an executive order according to the law’s provisions; it would stay in place unless
it was rescinded by an act of Congress or in some eligible cases, revoked by a subsequent
president. In recent times presidents have invoked an implicit, and consequently

*Moreover, Hobbes argued that in monarchies, the inherited right to rule was not just necessary but also salu-
tary; monarchs had a long-term stake in their subjects’ prosperity in order to maximize their own power and

77Chapter 2: The Constitution

� FIGURE 2.5 President Trump’s Approval Rating Compared to Governors

Do you approve or disapprove of the way President Trump/your state governor is handling the coronavirus
(COVID-19) outbreak? [Net: Approve]

President Trump Your State Governor





























































30%20% 40% 50% 60% 70% 80% 90%
















Source: A 50-State COVID-19 Survey,

National sample, N = 22,921. Time period = April 16–26, 2020.

78 Part I: The Nationalization of Politics

somewhat vague, authority that comes with their constitutional status as the nation’s chief
executive. Although executive orders give presidents the opportunity to act unilaterally,
they do not fully qualify as “commands” because the judiciary can rescind the order when
it decides that a president’s action exceeded the office’s implicit executive authority. This is
precisely what happened with President Obama’s order temporarily blocking deportation
of undocumented parents of children who are American citizens and additionally giv-
ing them work permits. The president may be the supreme commander, but the Framers
made sure any pretense of command authority ends there. Vivid evidence of their success
appears in outgoing president Harry Truman’s prediction about his successor, army gen-
eral Dwight Eisenhower: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will
happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”*

The veto embodies the right of an official or institution to say no to a proposal from
another official or institution. Like command, the veto is unilateral, allowing its posses-
sors to impose their views regardless of the preferences of others. Yet it is far less potent
than command because of one critical difference: it is a “negative” or blocking action that
preserves the status quo.† The veto confers little direct advantage in shifting government
policy, but in Chapter 7 we find that a president’s threat to use it may induce Congress to
address the president’s objections as it prepares legislation. Moreover, the blocking effects
of the veto can be limited by providing those subject to a veto the means of circumventing
it. After weighing the pros and cons of giving the president an absolute veto, the Framers
backed off and added an override provision. With a two-thirds vote in each chamber,
the House of Representatives and Senate can enact a vetoed bill without the president’s
endorsement. A policy that withstands the huge transaction costs entailed in mustering
supermajorities in both chambers has demonstrated its merits and deserves enactment
despite the president.‡

The president’s veto is the only explicit use of this instrument in the Constitution, but
the Constitution implicitly creates other important veto relationships. Both the House of
Representatives and the Senate must agree to identical legislation before it can proceed
to the president’s desk for his signature (or veto). In effect, then, each legislative cham-
ber holds a veto over the legislation emanating from the other chamber. Yet another

*According to most contemporary observers, Eisenhower’s experiences in office bore out Truman’s prediction.
According to one description of Ike’s sixth year in office, “The President still feels that when he has decided
something, that ought to be the end of it . . . and when it bounces back undone or done wrong, he tends to react
with shocked surprise.” Richard E. Neustadt, Presidential Power and the Modern Presidents (New York: Wiley,
1960), 10.
†In fact, many of the Constitution’s Framers referred to the veto as a “negative.”
‡All state governors possess some form of veto over legislation; many of these vetoes differ significantly from
the president’s in allowing the governor to veto parts of bills and flexibility in appropriating expenditures less
than those prescribed in the legislation.

79Chapter 2: The Constitution

unnamed veto resides with the Supreme Court.
Shortly after the new government was launched,
the Supreme Court claimed the power of judicial
review, asserting its authority to overturn public
laws and executive actions it deemed unconsti-
tutional. (We discuss fully this important “dis-
covered” authority in Chapter 9.) The greater the
number of veto holders, the higher the transac-
tion costs in making new policy. Consequently,
with its numerous veto holders, the American
political system deserves its reputation as being
inherently conservative.

Agenda Control
This refers to the right of an actor to set choices
for others. The choices might concern legisla-
tion, proposed regulations, or any other deci-
sion presented to a collectivity. Political parties
nominate candidates who define the choices
available to voters on Election Day. Those who
exercise agenda control gain both positive and
negative influence over collective decisions. On
the positive side, an agenda setter can introduce
a choice to the collectivity—a senator proposing
an amendment to a bill under consideration, for
example—which then decides to accept or reject
it. Where everyone enjoys this right—when, say,
any fellow senator can offer an amendment to
any colleague’s proposal—access to the agenda
will be of little consequence in explaining collec-
tive decisions. Agenda control becomes consequential in settings where some members
of the group exercise proposal power and others do not. Congress presents the president
with a bill that he must sign or veto. This is an example of strong agenda control. For an
example of weaker agenda control, many state governors can reduce but not increase
spending in an appropriation bill sent to them by the state legislature.

Consider the advantage this right confers. The agenda setter can propose a course
of action, leaving other participants the more limited authority to accept or reject. The
agenda controller thus limits the choices available to the collectivity. Unlike the Senate,
where proposal rights are universal, the House has long been governed by rules that
empower leaders to set the choices members will vote on. Leaders determine what, if
any, amendments will be allowed, and limit the time available for debating alternatives.

Widely published in opposition Whig newspapers, this cartoon
depicts President Andrew Jackson trampling on the Constitution
and public works legislation. However imperiously Jackson dealt
with the opposition-controlled Congress and the Supreme Court,
whose decisions he selectively ignored, the veto in his left hand
hardly sufficed to allow him “to rule” the country.
Courtesy of the Library of Congress Prints & Photographs Division

80 Part I: The Nationalization of Politics

This procedural authority can have huge consequences. In fact, it probably led to
that chamber’s impeachment of President Bill Clinton in 1998. In late fall 1998 the
Republican-controlled Judiciary Committee sent to the floor articles of impeachment
against President Clinton. Republican floor leaders faced a potential problem. They
favored impeaching the president as well, but they were fairly certain that a majority of
members did not favor this drastic course. Republicans held only a nine-vote majority
overall. Moreover, with Democrats appearing unified in opposing impeachment, four
to six Republicans informed their leaders that they preferred a softer punishment—
specifically, a resolution censuring President Clinton—to impeachment. Yet the
Republican leadership’s agenda control held a trump card that guaranteed their ulti-
mate success. With the authority to decide which proposals would be available for the
members to vote on, the leadership disallowed censure motions and forced Republican
fence-sitters to decide between impeachment and no action. In the end the fence-
sitters joined their colleagues, and on a nearly perfect party-line vote, the House of
Representatives impeached the president, even though a majority of the membership
preferred censure.15 House members confer so much power on their leaders and know-
ingly bear heavy conformity costs because in the absence of agenda control the trans-
action costs would be unmanageable. Without leaders orchestrating the chamber’s
decisions, the institution would be at the mercy of its 435 members—each, like their
colleagues in the smaller Senate, jealously protecting and exercising his or her right to
offer any bill or amendment at any time.

To appreciate how the solution to some issues appears to require agenda con-
trol authority, Congress has from time to time passed laws giving presidents fast-track
authority to negotiate trade agreements to bring to Congress for its approval. To give the
president credibility when negotiating with other governments (and with various indus-
tries), Congress ties its hands by limiting itself to either approval or disapproval. And if it
does neither by a certain deadline, the president’s proposal becomes law. Some have pro-
posed that a good way to break gridlock in Washington would be to give presidents this
kind of authority across the board.16

Voting Rules
Any government that aspires to democracy must allow diverse interests to be expressed in
government policy. When members of a collectivity share decision-making authority, the
outcomes are determined by some previously agreed-to voting rule. The most prominent
option in classical democratic theory is majority rule. Normally this term refers to a sim-
ple majority, or one-half plus one (Table 2.4 describes voting rules used by the Senate).

Majority rule embodies the hallowed democratic principle of political equality.
Equality requires that each citizen’s vote carries the same weight and offers all citizens the
same opportunity to participate in the nation’s civic life. When all votes count the same,
majority rule becomes an obvious principle: when disagreements arise, the more widely
shared preference should prevail.

81Chapter 2: The Constitution

Yet majority rule offers no magic balance between transaction and conformity costs.
It is just one possible constitutional rule midway between dictatorship and consensus.
Governments controlled by popular majorities are less likely to engage in tyranny—that
is, impose very high conformity costs—than are dictatorships, but this knowledge did
not fully reassure the Constitution’s Framers. Worried about tyranny by the majority, they
carefully constructed institutions that would temper transient passions of majorities in
the new government. Separation of powers with checks and balances, two concepts we
examine in detail in the next chapter; different term lengths for members of the House
and Senate, the president, and federal judges; and explicit provision for states’ rights all
make it difficult for majorities to take charge of the new government.

Although majority rule figures prominently in the Constitution, it is explicitly
required in only a few instances. Almost all popular vote elections require the winner to
receive not a majority, but simply a plurality of the votes cast—that is, more votes than
received by any of the other candidates. A majority of the Electoral College is required
to elect the president, and a quorum, a majority of the membership of the House of
Representatives, must be present before the House can conduct business. Much of what
the government does requires action by Congress, which, the Framers seemed to assume,
would conduct its business by majority vote.

Yet the Constitution permits or tacitly authorizes other voting rules. The Constitution
leaves it to the states to specify rules electing members of Congress, and states almost
always have preferred the plurality rule (the candidate receiving the most votes, regard-
less of whether the plurality reaches a majority) in deciding winners. Elsewhere in the
Constitution supermajorities of various amounts are required. If the president vetoes a bill
passed by both houses of Congress, two-thirds of the House and of the Senate must vote to
override the veto, or the bill is defeated. And in another example of steep transaction costs,
three-quarters of the states must agree to any amendments to the Constitution.

TABLE 2.4 Voting Rules of the U.S. Senate*


Passage of ordinary bills and amendments Simple majority of members present and

Rule 22 (cloture to set time limit on debate) Three-fifths of the full Senate (normally sixty

Veto override Two-thirds of members present and voting

Unanimous consent to take up legislation
out of turn

Unanimous agreement of members present

*These rules are fully explained in Chapter 6.

82 Part I: The Nationalization of Politics

When individuals or groups authorize others to make and implement decisions for them,
delegation occurs. Every time Americans go to the polls, they delegate to representatives
the responsibility for making collective decisions for them. Similarly, members of the
House of Representatives elect leaders empowered to orchestrate their chamber’s busi-
ness, thereby reducing coordination and other costs of collective action. The House also
delegates the task of drafting legislation to standing committees, which are more manage-
able subsets of members. As in this instance, decisions are frequently delegated in order to
control their transaction costs.

Social scientists who analyze delegation note that principals, those who possess
decision-making authority, may delegate their authority to agents, who then exercise it
on behalf of the principals. Every spring, millions of Americans hire agents—say, H&R
Block—to fill out their tax forms for them and, they hope, save them some money.
Similarly, the president (principal) appoints hundreds of staff members (agents) to moni-
tor and promote the administration’s interests within the bureaucracy and on Capitol Hill.
We use these terms to identify and illuminate a variety of important political relationships
that involve some form of delegation.

Delegation is so pervasive because it addresses common collective action problems.
It is indispensable whenever special expertise is required to make and carry out sound
decisions. The vast and complex federal bureaucracy requires a full chapter (Chapter 8)
to describe and explain—because Congress has pursued so many diverse public policies
and delegated their implementation to agencies. A legislature could not possibly admin-
ister its policies directly without tying itself in knots. The Continental Congress’s failed
attempts to directly supply Washington’s army during the Revolutionary War, result-
ing in the chronically inadequate provision of essential supplies to the troops, provided
a lesson not lost on the delegates to the Constitutional Convention in Philadelphia two
decades later.

Beyond the need for technical expertise, majorities may sometimes find it desir-
able politically to delegate decisions. For example, the government allocates space on
the frequency band to prevent radio or television stations from interfering with each
other’s signals. In 1934 Congress stopped allocating frequencies itself, leaving decisions
instead to the five members of the Federal Communications Commission. Congress
had learned early that assigning frequencies was difficult and politically unrewarding,
for its decisions were regularly greeted with charges of favoritism or worse. Congress
therefore delegated such decisions to a body of experts while retaining the authority to
pass new laws that could override the commission’s decisions. Thus Congress retains
the ultimate authority to set the nation’s technical broadcasting policies when it chooses
to exercise it.

Finally, almost all enforcement authority—the key to solving prisoner’s dilemmas of
all types—involves delegation to a policing agent. It might be the Internal Revenue Service
(IRS), the Securities and Exchange Commission, the Equal Employment Opportunity

83Chapter 2: The Constitution

Commission, or any of the hundreds of other federal, state, and local agencies that make
sure that individuals abide by their collective agreements.

Delegation solves some problems for a collectivity, but it introduces others. A princi-
pal runs the risk that its agents will use their authority to serve their own rather than the
principal’s interest. The discrepancy between what a principal would ideally like its agents
to do and what they actually do is called agency loss. Agency losses might arise “acciden-
tally” by incompetence or the principal’s failure to communicate goals clearly. Or losses
might reflect the inherent differences between the goals of a principal and its agents. A
principal wants its agents to be exceedingly diligent in protecting its interests while ask-
ing for little in return. Agents, on the other hand, prefer to be generously compensated
for minimal effort. The balance in most principal–agent relationships lies on a continuum
between these extremes. Mild examples of agency loss include various forms of shirking,
or “slacking off.” Our agents in the legislature might attend to their own business rather
than to the public’s, nod off in committee meetings, or accept Super Bowl tickets or golf
vacations from someone who wants a special favor. Citizens warily appreciate the oppor-
tunities available to their agents in Washington to “feather their own nest.” So voters are
quick to respond to information, typically from opponents who covet the job, suggesting
that the incumbent is not serving constituents well. Members of Congress who miss more
than a few roll-call votes usually do so at their peril.

So how can a principal determine whether its agents are being faithful when it can-
not observe or understand their actions? Car owners face a similar problem when an
auto mechanic says the strange engine noise will require replacement of an obscure part
costing a month’s pay. How do owners know whether to trust the mechanic, especially
because they know the mechanic’s financial interest clashes with theirs? They could get
a second opinion, investigate the mechanic’s reputation, or learn more about cars and
check for themselves, but all these solutions take time and energy. Governments use all
of these techniques and others to minimize agency loss. Whistleblower laws generously
reward members of the bureaucracy who report instances of malfeasance. Governments
can create an agent who monitors the performance of other agents. Congress has created
about eighty inspectors general offices within the federal bureaucracy to check and report
to the president and Congress on agency failures to perform assigned duties faithfully and
honestly. Delegation always entails a trade-off between the benefits of having the agent
take care of decisions on the principal’s behalf and the costs associated with the risks that
agents will pursue their own interests.

A virulent form of agency loss occurs when the agent turns its delegated authority
against the principal. This possible scenario arises when principals provide agents with
the coercive authority to ward off external threats or to discourage free riding. What
prevents these agents—the police, the army, the IRS, the FBI, and many others—from
exploiting their advantage not only to enrich but also to entrench themselves by prevent-
ing challenges to their authority? Certainly many have. World history—indeed, current
affairs—is rife with news of military takeovers, secret police, rigged elections, imprisoned
opponents, ethnic cleansing, and national treasuries drained into Swiss bank accounts.

84 Part I: The Nationalization of Politics

Institutions created to minimize transaction costs may, as the trade-off indicates, impose
unacceptably high conformity costs.

Assessing the Constitution’s Performance in
Today’s American Politics
America’s polarized politics poses several challenges for its constitutional system. One is
gridlock, the inability of the House of Representatives, the Senate, and the president to
agree on new policies. Even when all agree that a government program is broken, all too
often there appears to be little prospect that it will soon be fixed. In large part, of course,
gridlock in addressing universally recognized problems simply reflects the fact that
Americans and their representatives disagree on a solution. Everyone appears to dislike
the nation’s current immigration policy, but with solutions ranging from “build a wall” to
dismantling the Immigration and Customs Enforcement (ICE), there is little prospect of
agreement on any new policy.

But gridlock also results from a more fundamental difficulty in reaching collec-
tive decisions. Our constitutional system intentionally disperses government authority.
Separation of powers and federalism necessitate broad agreement among officehold-
ers across the different branches in order for new policies to be successfully enacted and

David Horsey Editorial cartoon/The Seattle Times/TCA

85Chapter 2: The Constitution

subsequently implemented. And by adding a layer of institutional fragmentation on top
of pluralism, the Framers simply overdid it. The result is an inherently conservative polit-
ical process. The president, the House of Representatives, and the Senate all hold a veto
over new laws, and if they agree, the federal judiciary typically is invited by the disgrun-
tled loser to weigh in and declare the policy unconstitutional. Those opposed to the policy
need only prevail in one of those institutions to veto a new policy.

The Framers intentionally left unstated important aspects about how government
should work on a daily basis. As a result we are still working through whether separation
of powers and checks and balances allow government officials the discretion to pursue a
course of action they claim they have the authority to do. Was Obama’s executive order
protecting “Dreamers” from deportation constitutional? (The Supreme Court answered
this question in 2020, which we examine fully in Chapter 4.) Can a president to whom the
Constitution assigns broad pardon power pardon himself or even be indicted for a crime?
(President Trump emphatically says he can pardon himself, and his Justice Department
claims that separation of powers prevents such an indictment while the president remains
in office.)

Today, trying to figure out what the Constitution permits and prohibits its govern-
ment officials from doing occupies much of the waking hours of numerous politicians,
judges, and lawyers. Divided party control of government in Washington finds pres-
idents acting unilaterally, testing the boundaries of their authority. Not only will the
opposition party in Congress challenge their actions, so too will the thoroughly “red”
(aka Republican) and thoroughly “blue” (aka Democratic) states challenge objection-
able polices in federal courts. Trump’s recent separation-of-powers controversies—travel
bans into the country, reallocation of federal defense funds to build the border wall, with-
holding funds from sanctuary cities, refusing to send his income tax records to Congress,
preventing federal officials from giving congressional testimony, and sending uninvited
federal officers into cities to quell protests—illustrate the scope of this disagreement. This
list could have easily been several times as long. During the president’s first three years in
office, state attorneys general filed 103 lawsuits against Trump administration officials.*

*According to one count, entering summer of 2020 federal courts had rebuffed the Trump administration’s
assertion of authority in 90 cases and upheld it in 12.


agency loss 83
agenda control 79
agent 82
Antifederalists 66
Articles of Confederation 43

bicameral legislature 40
Bill of Rights 62
checks and balances 55
command 75
commerce clause 54

confederation 43
Declaration of

Independence 42
delegation 82
Electoral College 59

86 Part I: The Nationalization of Politics

faction 70
fast-track authority 80
Federalists 66
Great Compromise 59
gridlock 84
home rule 36
judicial review 60
logroll 64
majority rule 80

nationalists 49
necessary and proper clause 54
New Jersey Plan 53
nullification 68
pluralism 72
plurality 81
popular sovereignty 50
principal 82
Shays’s Rebellion 47

simple majority 80
states’ rights 53
supermajority 58
supremacy clause 60
“take care” clause 58
Virginia Plan 52
voting rule 80
whistleblower laws 83


Draper, Theodore. A Struggle for Power: The
American Revolution. New York: Times Books,
1996. According to Draper, the Revolution rep-
resented the politics of self-interest rather than
ideology. His account also examines the greater
political context of the Revolution, in particular the
long-standing conflict between the French and the

Howell, William G., and Terry M. Moe. Relic: How
Our Constitution Undermines Effective Government.
New York: Basic Books, 2006. The authors propose
a constitutional solution to Washington’s chronic
gridlock by shifting agenda control from Congress
to the president. Specifically, the president would
propose laws that Congress could vote up or down.
If it failed to do either within a fixed time period,
the president’s proposal would become law.

Ketcham, Ralph. James Madison: A Biography.
Charlottesville: University Press of Virginia, 1990.
An authoritative and highly readable biography of
America’s first political scientist.

Miller, William Lee. The Business of May Next:
James Madison and the Founding. Charlottesville:
University Press of Virginia, 1992. An absorbing

account of the politics leading up to and at the
Constitutional Convention. This history served
as the chief source of the account reported in this

Norton, Mary Beth. Liberty’s Daughters. Boston:
Little, Brown, 1980. A systematic and persuasive
assessment of the considerable behind-the-scenes
contribution of women during the Revolution and
the impact of the war on the transformation of
family relationships.

Riker, William. The Strategy of Rhetoric. New
Haven, CT: Yale University Press, 1996. A lively
yet keenly analytical and systematic account of the
Constitution’s ratification as a political campaign.

Wills, Garry. Explaining America. New York:
Doubleday, 1981. An analysis of the logic and ideas
of The Federalist. Few authors can match Wills’s tal-
ent for rendering abstract concepts and ideas intel-
ligible to the general audience.

Wood, Gordon S. The Creation of the American
Republic, 1776–1787. New York: Norton, 1969. An
indispensable intellectual history of the transfor-
mation of America from the Revolution through
the adoption of the Constitution.

87Chapter 2: The Constitution


1. What steps were taken to construct a national
government before the Articles of Confedera-
tion? What resulted from these steps?

2. How were decisions made under the Articles?
What sorts of decisions were not made by the
confederation? How did this system affect the
war effort? How did it affect the conduct of
the national and state governments once the
war was over?

3. Why is the Electoral College so complicated?

4. How did the Framers balance the powers and
independence of the executive and legislative

5. Discuss how the coordination and transac-
tion costs for states changed when the national
government moved from the Articles of
Confederation to the Constitution.

6. What are principals and agents? When in your
life have you been one or the other?

7. What mechanisms for constitutional amend-
ment were included in the Constitution? Why
were multiple methods included?

Pro-immigrant protesters in California made an explicit appeal to states’ rights in 2018 when they called on then–attorney general
Jeff Sessions to stay out of California’s sanctuary state law. An irony of this defense of the law is that states’ rights arguments
were also advanced throughout much of America’s history to stop the federal government from enforcing civil rights laws,
environmental protections, and even the abolition of slavery.
AP Photo/Jeff Chiu, file



• Is there a rationale for having some government services
supplied locally, others by the states, and still others by the
national government?

• Despite the Framers’ efforts to keep the national
government out of the states’ business, was it inevitable that
so many policies once left to the states are now handled by
the federal government?

• When elected officials from the states challenge national
authority, what determines who will have the final say over


3.1 Describe federalism and the
way it evolved in the United

3.2 Identify the kinds of
constitutional protections
that guard against an overly
powerful national government.

3.3 Discuss the factors
contributing to a shift toward
nationalized public policy.

3.4 Explain the ways in which
the national government
dominates the modern federal

3.5 Assess to what extent
collective action dilemmas
influenced modern federalism.

On March 7, 2018, the federal government of the United
States of America declared war against the sovereign state
of California. At least that’s how Golden State governor Jerry
Brown, a Democrat, characterized the speech that Attorney
General Jeff Sessions gave to a gathering of law enforcement
officials in Sacramento. Accusing the federal government of
initiating a “reign of terror,” Governor Brown announced that
“this is basically going to war against the state of California.”
The rhetoric employed by Attorney General Sessions was no
less overheated. Sessions accused state leaders of advancing the
agendas of “radical extremists” and of passing “irrational, unfair,
and unconstitutional policies.”1

What issue so dramatically inflamed tensions between the
nation’s top law enforcement officer and the governor of its
most populous state? The policy in question was the so-called
“sanctuary state” bill that Governor Brown had signed in 2017, a
law that prevented state and local law enforcement officials from
carrying out the work of federal immigration authorities. The
bill, authored by state senate leader Kevin de Leon, forbid police
officers and sheriffs in the state from asking about a person’s

90 Part I: The Nationalization of Politics

immigration status and put restrictions on how these officials could communicate
with agents of the federal Immigration and Customs Enforcement (ICE) agency. In a
compromise hammered out between the more moderate Brown and the liberal de Leon,
when California police and sheriffs arrested an undocumented immigrant who had
committed one of eight hundred serious or violent felonies, they could communicate
and cooperate with ICE agents and transfer the arrested person. But if the immigrant
was arrested for a lesser crime and due to be released, California officers could not hold
the accused for transfer to ICE.

As if illegal immigration and crime were not hot-button issues enough, what truly
elevated the tensions between California’s leaders and the Trump administration
was that the sanctuary state bill raised the question of where federal authority ends
and a state’s power begins. Could Sacramento lawmakers even do this, in the face
of opposition from Washington, DC? At stake in the controversy over the bill was
the issue of states’ rights, the perennial push and pull between America’s state and
federal governments that has been fought out on legal, political, and literal battlefields
throughout our history. What policies should be entirely under the control of each
state, and what issues should be governed by a single federal policy crafted in
Washington, DC? This is the fundamental question of federalism. It has been debated
since America’s founding and at crucial points in our nation’s development, with the
sanctuary state bill and the sanctuary city laws that preceded it again providing an
example of the legitimate arguments on both sides.

From the perspective of Attorney General Sessions and President Donald Trump,
the ability to enforce a uniform set of laws was crucial to implementing a national
immigration policy. After all, a strict approach to preventing illegal immigration was
a central plank of Trump’s campaign and helped win him the presidency. Being able
to enforce a national plan all across the country was critical to controlling the nation’s
borders, they argued. If a city, county, or especially the nation’s largest state provided
sanctuary to those who did not immigrate legally, this would prevent the federal
government from delivering the public good of strong borders. In the terms outlined in
Chapter 1 of this book, this posed a collective action problem for Sessions and leaders in
other states who wanted to prevent California from defecting from a national approach
to illegal immigration. Of course, the attorney general framed his dilemma in more stark
terms. “This state of lawlessness allows gangs to smuggle guns, drugs, and even humans
across borders and around cities and communities,” declared Sessions. “That makes a
sanctuary city a trafficker, smuggler or gang member’s best friend.”2

California’s leaders countered with a public safety argument of their own and with a
claim that police and sheriffs employed by state and local governments should not
be compelled to carry out federal policies. They pointed out that violent felons were

91Chapter 3: Federalism

not protected by the sanctuary laws and that victims or witnesses of crimes would be
discouraged from reporting them if they feared that this would lead to deportation. State
leaders also made the implicit argument that the federal government’s solution to its
collective action problem imposed conformity costs on California: being forced to spend
state resources to enforce federal policies staunchly opposed by many of the state’s
voters essentially nationalized state and local law enforcement, against the will of the
taxpayers who paid their salaries. The sanctuary state bill’s author, Kevin de Leon, argued
that the law “will prevent state and local law enforcement officers and resources from
being commandeered by President Trump to enforce federal laws. Our undocumented
neighbors will be able to interact with local law enforcement to report crimes and help in
prosecutions without fear of deportation—and that will make our communities safer.”3

The struggle between a national standard of immigration enforcement and states’
rights to pass sanctuary laws was fought not just in political rhetoric but in a series
of bills, executive orders, and high-profile court cases in the first years of the Trump
administration. In the first week after he was inaugurated, President Trump issued an
executive order withholding federal funding to any cities and counties that refused to
cooperate fully with federal immigration agents. “These grants are not an entitlement,”
said Sessions, attempting to use federal grants as a carrot to compel state and local
governments to adhere to federal policy (a strategy outlined later in this chapter).
Rather than complying, Chicago and a group of other cities sued, arguing for states’
rights. Soon after California passed its sanctuary state law, Sessions and the federal
government sued, arguing for federal
supremacy. And when Texas went in
the opposite direction from California,
passing a state law that prevented its
cities from declaring themselves to be
sanctuaries, cities sued Texas, arguing
for their local right to diverge from
national policy.

Fighting out a critical policy issue
through a battle over states’ rights
puts the sanctuary state policy
controversy squarely in line with
American political tradition. There are
both immediate policy questions and
long-standing governing principles
underlying these debates. Consistent
backers of states’ rights have a
philosophical commitment to the

Attorney General Jeff Sessions harshly criticized cities across the country
that had declared themselves as sanctuaries for undocumented immigrants,
preventing their local police officers from asking residents about their
immigration status or from collaborating with Immigration and Customs
Enforcement (ICE) agents. “That makes a sanctuary city a trafficker, smuggler,
or gang member’s best friend,” Sessions warned.
Alex Wong/Getty Images

92 Part I: The Nationalization of Politics

decentralization of authority, believing that it leads to greater governmental innovation
and to a set of state policies that better represent the desires of each state’s residents
than a single, one-size-fits-all national policy. The proponents of federal power counter
that the patchwork of policies created when states are free to do as they please makes
it difficult to govern a nation where problems can spill over state lines as easily as
Americans can drive across them. They point out that majority votes in states can often
threaten the civil rights of minorities. The debate over exactly which powers should
belong to the federal government and which are reserved to the states goes back to the
very founding of the nation, as Chapter 2 illustrates. This conflict has been fought out at
constitutional conventions, in courtrooms, and on the battlefields of the Civil War.

The idea of states’ rights has been invoked by proponents of policies at both ends
of the ideological spectrum. It is used as often to defend state gun control laws as it
is to challenge the current federal preemption of many state abortion restrictions.
Historically, states’ rights arguments were wielded by the alcohol prohibition
movement and, most shamefully, by defenders of slavery and the decades of state-
sponsored racial segregation that soon followed slavery’s abolition (covered in Chapter
4). Today, many liberals argue that states should have the right to allow medical or
recreational marijuana. Arguments about the legitimacy of states’ rights come down to
the debate over whether state or national majorities should govern, and how far courts
should go to protect the rights of minorities.

Even though the nation has grappled with these key questions of federalism for its
entire history, the debate has never been completely resolved. The judicial battle over
the constitutionality of President Obama’s Patient Protection and Affordable Care Act
(ACA)—covered in the Politics to Policy box “Free Federal Dollars?”—was a fight over states’
rights in which the national government won only a very limited victory. The Supreme
Court’s ruling in the landmark 2005 case Gonzales v. Raich upheld the supremacy of federal
restrictions on medical marijuana over state laws, but states have continued to pass bills
and propositions to relax access to pot ever since the decision was issued.

The ultimate arbiter in controversies of American federalism is the U.S. Supreme
Court. Yet just because the federal judiciary decides whether national or state policy
will prevail does not mean that Washington, DC, always wins out. Chicago won in its
initial case against the federal government, and in August 2018, judges in the U.S. Ninth
Circuit Court of Appeals ruled in favor of cities and against the Trump administration’s
policy of threatening to withhold federal funds from sanctuary cities. California won the
first round of its legal fight with the Trump administration over the sanctuary state law
when the Ninth Circuit ruled in its favor. President Trump then tweeted “See you in the
Supreme Court!” But in June 2020, the Supreme Court let the law stand by refusing to
hear an appeal in the aptly named United States v. California.

93Chapter 3: Federalism

American-Style Federalism
In a federal system, the constitution divides authority between two or more distinct levels
of government. For example, the system in the United States divides the national (federal)
government and the states.* Federalism is a hybrid arrangement that mixes elements of a
confederation, in which lower-level governments possess primary authority, and unitary
government, in which the national government monopolizes constitutional authority, as
shown in Figure 3.1.

Before adopting a federal system in the Constitution, the nation experienced first a
unitary government and then a confederation. The decision by the distant British gov-
ernment to impose a central, unitary authority to tax and administer the subordinate col-
onies precipitated the American War of Independence. After the war, the citizens of the
newly independent states reacted to the colonial experience by rejecting unitary authority
in favor of a confederation in which smaller state governments held ultimate power. But
because the Articles of Confederation failed to give the national government any enforce-
ment authority, the individual states could, and did, ignore legislation from Congress that
they did not like. Consequently, the national government accomplished little.

Across the world, unitary governments are far more common than federations
and confederations combined. Under unitary systems, the lower-level governmental
entities—such as counties and metropolitan districts in Britain and departments in
France—are created by and ultimately depend on the national government for authority and
resources. Typically, the central government establishes national policies, raises money,
and distributes funds to the local units to carry these policies out. However deliberative
and authoritative these subnational units may appear, they function largely as part of
the administrative apparatus of the national government. A unitary government may
decentralize its power by delegating some decisions and administration to a lower govern-
ment entity, but even so the constitutional system remains unitary because the national
government retains ultimate authority to alter or rescind this delegation.

In a federal system, however, a government has constitutional relations across levels,
interactions that satisfy three general conditions:

• The same people and territory are included in both levels of government.

• The nation’s constitution protects units at each level of government from
encroachment by the other units.

• Each unit is in a position to exert some leverage over the other(s).4

*In this text and elsewhere, the terms federal and national are used interchangeably. This practice also char-
acterized discussions leading to the formation of the Union. Any difference in usage was largely a matter of
stress—that is, federal reflected the user’s cognizance of the state elements also present in the national govern-
ment. Hans Sperber and Travis Trittschuh, American Political Terms (Detroit, MI: Wayne State University Press,
1962), 148–149.

94 Part I: The Nationalization of Politics

The second condition, independence, is critical because it sets the stage for the third
condition, mutual influence. The lack of independence rendered the national government
impotent under the Articles of Confederation. With the states commanding a veto over
the most important national legislation, the national government lacked the resources and
authority to act independently of the states.

� FIGURE 3.1 Comparing Three Systems of Government

Unitary System State and local




Authority is centralized, with state and local governments
administering authority delegated from central government.

Examples: United Kingdom, France, and Japan


State and local



Authority held by independent states and delegated
to central government by consensus agreements.

Example: United States under the Articles of Confederation


State and local


Authority is divided between central and
state or local governments.

Examples: Canada, United States under the Constitution

95Chapter 3: Federalism

Occasionally, observers of American feder-
alism refer to local governments as if they were
a separate level in a three-tiered federal system.
This characterization is inaccurate. Local gov-
ernments, which include thousands of counties,
cities, and special districts—such as school dis-
tricts, water boards, and port authorities—are
established by the states (listed in Table 3.1). They
are not mentioned anywhere in the Constitution.
In providing a limited range of government ser-
vices, local governing bodies may pass laws,
worry each year about balancing their budgets,
generate revenue through taxes and fees, and
spend public money through their own agencies,
but these bodies do not exercise independent,
constitutional authority. In a famous decision,
Judge John F. Dillon concluded “that the great
weight of authority denies in toto the existence, in the absence of special constitutional pro-
visions, of any inherent right of local self-government which is beyond [state] legislative
control.” Dillon’s rule made it clear that local governments are mere “creatures of the state.”5

State officials can and often do exercise their power to intervene in local affairs. They
may determine matters as fundamental as the governing structures of cities, counties,
and special districts; their taxation powers; and even their geographic boundaries. They
can wield authority over local issues that are important to voters statewide, as New York’s
state legislature did in early 2008 when its members halted New York City mayor Michael
Bloomberg’s plan to charge an $8 toll to drivers entering Manhattan during rush hours.
State officials, such as the Alabama legislature in its 1880 session, can also intervene in
areas as trivial as “prohibiting the sale, giving away, or otherwise disposing of, spirituous,
vinous, or malt liquors within two and one-half miles of the Forest Home (Methodist)
church, in Butler county.”

Even when metropolitan areas are ceded great discretion to decide local policies
through state home-rule provisions, they remain the legal creations of states, which retain
the authority to rescind or preempt local ordinances. Whereas the relations between the
state and national governments are premised on separate constitutional authority and
qualify as “federal,” those between state and local governments are not and therefore can
best be classified as “unitary.”6

Evolving Definitions of Federalism
The three defining features of federalism listed earlier leave room for different kinds of
relations between state and national governments. Two distinct forms of American feder-
alism have been identified: dual and shared. Dual federalism is perhaps the simplest pos-
sible arrangement, leaving the states and the national government to preside over mutually

TABLE 3.1 Numerous Governments
Constitute America’s Federalism

National 1

State 50

County 3,031

Municipal 19,495

Township or town 16,253

School district 12,754

Other special districts 38,542

Total 90,126

Source: U.S. Census Bureau, 2017 Census of Governments, “Local
Governments by Type and State: 2017,” accessed at https://www

96 Part I: The Nationalization of Politics

exclusive “spheres of sovereignty.” James Madison described this arrangement (and the
intent of the Framers of the Constitution) in Federalist No. 45: “The powers delegated by the
proposed Constitution to the Federal Government are few and defined. Those which are to
remain to the State Governments are numerous and indefinite.” For example, foreign policy
and national defense are purely national concerns; matters that “in the ordinary course of
affairs, concern the lives” of the citizens are the responsibility of the individual states.

A second conception, called shared (or “cooperative”) federalism, recognizes that
the national and state governments jointly supply services to the citizenry. Although each
level of government has exclusive authority over some policy realms, state and federal
powers intersect over many of the most important functions. Figure 3.2 gives examples of
these areas of exclusive and shared authority.

Throughout American history, the nation’s practices better resemble the overlapping
arrangements of shared federalism than the neat divisions of dual federalism. In the early
years of the nationhood, states exercised national authority on important matters. In the
Civil War the Union forces assembled to put down the Confederacy were recruited and
initially provisioned by the states. Only after the men joined the ranks of other states’
enlistees did the federal government assume control.

Soon after that war, however, nationalization shifted the “indefinite” authority Madison
had assigned to state governments to the national side. Today, in fact, the national govern-
ment has a hand in almost all policies that “concern the lives” of the citizenry. The most

� FIGURE 3.2 The Constitutional Basis for Dual and Shared Federalism

National Government
Exclusive Powers
✯ Coin money
✯ Regulate interstate and foreign commerce
✯ Tax imports and exports
✯ Make treaties
✯ Make all laws “necessary and proper” to fulfill
✯ Make war
✯ Regulate postal system

Powers Denied
✯ Tax state exports
✯ Change state boundaries
✯ Impose religious tests
✯ Pass laws in conflict with the
Bill of Rights

State Governments
Exclusive Powers
✯ Run elections
✯ Regulate intrastate commerce
✯ Establish republican forms of state and local
✯ Protect public health, safety, and morals
✯ All powers not delegated to the national government
or denied to the states by the Constitution

Powers Denied
✯ Tax imports and exports
✯ Coin money
✯ Enter into treaties
✯ Impair obligation of contracts
✯ Enter compacts with other states
without congressional consent

Shared Authority
✯ Tax

✯ Borrow money
✯ Charter banks and corporations
✯ Take property (eminent domain)

✯ Enforce laws and administer
a judiciary

Source: Adapted from Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: A Short Course, 7th ed. (Washington, DC:
CQ Press, 2017), Table III-1, p. 189.

97Chapter 3: Federalism

important expansions of national power are described later in this chapter. These include the
New Deal policies of the 1930s and the Great Society programs of the 1960s, through which
the federal government redesigned more limited state and local pension, welfare, and health
care programs by providing most of the funding for them, designing a basic framework for
each state to work through and opening up eligibility to all qualifying Americans. In the past
two decades, the testing and funding provisions of the No Child Left Behind Act (NCLB)
championed by George W. Bush and Barack Obama’s Race to the Top initiative have sharply
increased federal influence over the way local schools operate. The trend toward national-
ization has not been entirely a one-way street. Both the Nixon and Reagan administrations
pushed for a “new federalism” by giving states more control over the implementation of
some federal programs and grants, and Bill Clinton worked with Congress to increase state
control over other federal policies through the “devolution revolution” of the 1990s. Before
he became Speaker, House budget chair Paul Ryan and other congressional Republicans
proposed giving states much more control over how to spend the federal grants they receive
to provide health care to their aged, disabled, and poor residents (though the plan would also
dramatically cut the size of these grants). Yet these exceptions to the rule of ever-increasing
federal power have occurred only with the willing agreement of federal leaders.

Overall, then, the United States has moved from Madison’s dual federalism to a shared
federalism in which federal officials generally decide how authority over intersecting state
and federal policy areas should be divided. Indeed, the modern ascendancy of the national
government surely would have amazed all (and horrified most) of the delegates to the
Constitutional Convention. After all, protecting the states from encroachment by a stron-
ger national government was, in the words of one nationalist delegate, “the favorite object
of the Convention.” All but a handful of the states’ rights delegates were satisfied with the
final product, and most of them later publicly advocated the Constitution’s ratification.
So why have their efforts to partition federal and state responsibilities into separate,
self-contained spheres been so thoroughly eclipsed?

Part of the answer is that modern policy challenges and a political consensus that “the
government” should provide more services and solve more problems than the Founders
anticipated have made a joint, cooperative strategy across states and levels of government
necessary. Pollution does not honor state boundaries; neither do unemployment, infla-
tion, crime, greenhouse gases, methamphetamines, or irresponsible mortgage lenders.
Then there is the Internet, which knows no boundaries whatsoever. National disasters
such as Hurricane Katrina and the 2010 BP oil spill in the Gulf of Mexico affect areas far
beyond the reach of floodwaters or oil slicks and require responses on a scale that no single
state can provide. The increasing complexity of policy dilemmas and the growing interre-
lationship between American states have driven the move toward nationalization.

But political logic in tandem with the rules that govern the boundaries of American
federalism are just as important in explaining the increasing involvement of the fed-
eral government in matters that “in the ordinary course of affairs, concern the lives” of
Americans. Federal officials have many incentives to increase federal power. Presidents
are often rewarded when they bring state or regional policies into line with what their
national constituency desires. Members of Congress can claim political credit when

98 Part I: The Nationalization of Politics

they work through the federal government to help their districts, and often draw on the
immense national tax base to do so. When either logic leads to an expansion of federal
authority that the states resist, the critical question becomes, who gets to decide whether
this expansion is legitimate? As the next section shows, the Constitution opened the
door to nationalization by granting the federal government ultimate power to determine
(within certain bounds) the extent of its authority over the states.

Federalism and the Constitution
In countering Antifederalist alarms about an overly powerful national government,
Madison cited two kinds of protections in the Constitution: first, the “structure of the Federal
Government,” referring mostly to the Senate, and second, explicit rules reserving important
prerogatives to the states. Neither has proved an effective barrier to national action.

Transformation of the Senate
In the nineteenth century the equal representation of states regardless of population, com-
bined with the selection of senators by state legislatures, gave the Senate the motive and
the means to defend state prerogatives against national encroachment. The history of slav-
ery reveals just how effective the institution was in this task. At first, some state legisla-
tures were so possessive of the Senate and its members that they would pass resolutions
instructing their senators how to vote on particular issues. Senators who failed to comply
were asked to resign, and some did.7 Even after this practice died out in the 1840s, most
senators continued to regard themselves as agents of the state party organizations that
controlled the state legislatures and elected them.

The real coup de grâce for the Senate as the bulwark of federalism came with ratifi-
cation in 1913 of the Seventeenth Amendment, which mandated direct, popular election
of senators. Amid persistent, widespread, and sometimes well-founded charges that sen-
ators bribed legislators to buy seats (and instances when divided state legislatures failed
to agree on a nominee, leaving the state without representation for an extended period), a
public consensus formed against indirect election of senators. Public pressure mounted to
such an extent that more than three-quarters of state legislatures surrendered control and
turned Senate selection over to popular election. The amendment, however, while target-
ing dysfunctional political practices, also knocked out an important prop of federalism
because it removed senators’ ties to the state legislatures. Today, the Senate is a central pil-
lar of the national government. Senators may, incidentally, protect states’ interests as they
serve those of their constituents, but there are no guarantees. In fact, major extensions of
federal authority have originated on the floor of the Senate, where more than a few of that
chamber’s members have cultivated a national constituency with an eye toward future
presidential campaigns. Hillary Clinton, Ted Cruz, Bernie Sanders, and Marco Rubio all
burnished their national credentials and launched their bids for the White House from
the Senate, and members of the upper house made many of the key policy deals to pass the
landmark pieces of legislation that characterized the early years of Obama’s presidency.8

99Chapter 3: Federalism

Constitutional Provisions Governing Federalism
Article IV, Section 3, Admission of New States: New States may be admitted by the Congress
into this Union; but no new State shall be formed or erected within the Jurisdiction of any
other State; nor any State be formed by the Junction of two or more States, or Parts of States,
without the Consent of the Legislatures of the States concerned as well as of the Congress.

Article IV, Section 4, Enforcement of Republican Form of Government: The United
States shall guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic Violence.

The Constitution gives the national government at least as much responsibility for
overseeing the integrity of the states as it does the states for overseeing the integrity of the
national government. All but the original thirteen states entered the Union by an act of
Congress; the national government defined the boundaries of territories, oversaw their
administration, and eventually ushered them into the Union. Moreover, Article IV of the
Constitution obliges the federal government to ensure that all states adhere to republican
principles. Although Congress may create new states, it cannot destroy an established
state—say, by dividing it in half—without its consent. For their part, two-thirds of the
states may petition Congress to convene a special constitutional convention to propose
amendments. In these seldom-invoked provisions, the Constitution enlists each level of
government to keep the other in check.

Language distinguishing the authority and responsibilities of the states from those of
the national government runs throughout the Constitution. In partitioning responsibili-
ties, the Framers worked within a structure of dual federalism. Thus in three major sections
of the Constitution they attempted to specify boundaries between the two levels of govern-
ment. By understanding what these provisions sought but largely failed to do, we can better
appreciate how the U.S. governmental system has yielded to nationalizing forces.

The Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The provision of the Constitution with the most profound implication for modern
American federalism is the so-called supremacy clause in Article VI: “This Constitution,
and the Laws of the United States which shall be made in Pursuance thereof [that is, in
keeping with the principles of the Constitution] . . . shall be the supreme Law of the Land.”
Although this clause appears to give the national government license to do whatever it
wants, the text actually contains an important qualifier: the national government enjoys
supremacy, but only insofar as its policies conform to a Constitution that prohibits cer-
tain kinds of federal activities.9 This qualifier restricted national authority throughout
most of the nineteenth century. The original intent was simply to have the national gov-
ernment prevail over states when both governments were acting in a constitutionally

100 Part I: The Nationalization of Politics

correct manner. Thus the supremacy clause was framed to avoid impasses over jurisdic-
tion rather than to cede authority to the national government. Over the next two hundred
years, however, the sphere of legitimate national action expanded, allowing national pol-
icy to enter domains once occupied only by the states. Wherever the national government
carved out new authority, it automatically became supreme.

The Powers of Congress
Article I, Section 8, Elastic Clause: The Congress shall have Power . . . to make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.

Article I, Section 8, Commerce Clause: The Congress shall have Power . . . to regulate
Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Article I, Section 8, lists the powers reserved to Congress. But these provisions have as
much to do with federalism—that is, creating jurisdictional boundaries between the states
and the national government—as they do with parceling out authority among Congress,

the president, and the Supreme
Court. After protracted delibera-
tions in which many possibilities
were considered, the Framers finally
agreed to list in the Constitution
a dozen or so enumerated pow-
ers that should be in the domain
of the national government—
specific authority that would enable
the government to address prob-
lems the states had not grappled
with effectively under the Articles
of Confederation. One example:
even Antifederalists conceded that
a national postal system made better
sense than trying to stitch together
thirteen individual state systems.

Recognizing that contingen-
cies requiring a national response
might arise in the future, the
Framers added to Section 8 what is
now known as the elastic clause. It
allows Congress to “make all Laws
which shall be necessary and proper
for carrying into Execution the

Despite the supremacy clause, constitutional battles today still address
fundamental issues such as which governments reign supreme. Soon after Trump
was elected president, California’s legislative leaders, anticipating a spate of legal
battles with the Trump administration over whether state or federal law should
govern critical issues, lawyered up. They hired Eric Holder, center, who served as
attorney general under Barack Obama. California has since filed eighty-five cases,
winning twenty-one times and losing four of the cases that were decided by 2020.
AP Photo/Rich Pedroncelli, file

101Chapter 3: Federalism

foregoing Powers.”10 This open-ended provision, whose interpretation later would under-
mine the restrictive purpose of the carefully worded list of enumerated powers, apparently
escaped the attention of many of the delegates because the convention accepted it with lit-
tle debate. Later, the Antifederalists detected in it an opening for broad national authority,
as did the generations of national officeholders who followed them. As the variety of eco-
nomic transactions that directly involve interstate commerce has grown sharply over the
past two centuries, so too has the sphere of policy over which the national government can
claim some jurisdiction. Moreover, laws governing a broad variety of social relations that
are only incidentally economic—such as racial discrimination in access to public accom-
modations and possession of handguns near public schools—have invoked the commerce
clause to justify federal involvement in these longtime state responsibilities.

The Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.

In the ratification debates Madison answered Antifederalist charges of impending
tyranny by promising that once the new government was in place, he would immediately
introduce a bill of rights (covered in Chapter 2). In view of the controversy surrounding
federal power in the ratification debates, it is not surprising that many members of the
First Congress insisted that the first ten constitutional amendments include protections
for the states as well as for individual citizens.

The Tenth Amendment offers the most explicit endorsement of federalism to
be found in the Constitution: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or
to the people.” Yet, despite its plain language, the Tenth Amendment has failed to fend off
federal authority. The powerful combination of the supremacy and elastic clauses reduces
the Tenth Amendment to little more than a truism: those powers not taken by the national
government do belong to the states. About all that it offers critics of nationalization is lip
service to the principle of states’ rights.

Interpreting the Constitution’s Provisions
The sweeping language with which the Constitution variously endorses national power
and states’ rights has given politicians easy openings to interpret the Constitution accord-
ing to their own political objectives. Thus the Framers envisioned a Supreme Court that
would referee jurisdictional disputes among the states and between states and the national
government. Among the thousands of judicial decisions that have grappled with the
appropriate roles of the national and state governments, one early Supreme Court ruling
stands out for protecting the national government from incursions by the states. In 1816
Congress created a national bank that proved unpopular with many state-level politicians
who preferred the state-chartered banks over which they exercised control. To nip this
federal meddling into what it viewed as a state matter, Maryland levied a heavy tax on all

102 Part I: The Nationalization of Politics

non-state-chartered banks. James McCulloch, an agent for the national bank in Baltimore,
refused to pay the tax, and the two sides went to court. The historic decision in McCulloch
v. Maryland (1819) brought together the supremacy and elastic clauses and moved them
to the forefront of constitutional interpretation.11 Writing for the Court, Chief Justice John
Marshall declared that because the national bank assisted Congress in performing sev-
eral of its responsibilities enumerated in Article I, Section 8—namely borrowing money,
levying taxes, and issuing a national currency—the elastic clause gave the national gov-
ernment the implicit authority to create the bank. In one of the most famous passages in
Supreme Court opinion, Marshall enunciated this definitive constitutional doctrine:

Let the end be legitimate, let it be within the scope of the Constitution, and 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

Marshall iced the cake by removing the young national government from the pur-
view of the states. Because “the power to tax involves the power to destroy,” the supremacy
clause implicitly exempts the federal government from state taxes.

Five years later, in 1824, the Marshall Court handed down another decision that must
have appeared far less significant to contemporaries than it came to be regarded in the
twentieth century. In settling a dispute between New Jersey and New York over each state’s
efforts to give a favored steam company a monopoly over shipping on the Hudson River,
the Court held in Gibbons v. Ogden that neither state could control such a concession.12
Only Congress possessed the authority to regulate interstate commerce.

In combination, these two cases created powerful precedents that would allow future
national policy to develop free of the constraints of state prerogatives. Once the Court in
Gibbons had sanctioned federal authority to regulate commerce, the supremacy clause
gave the national government the authority to preempt the states in virtually all policies
involving interstate commerce. Many traditional tasks of states, such as providing for pub-
lic safety, enforcing fair advertising laws, and overseeing waste disposal, would slip easily
into federal control via the commerce clause.

As national politicians sought over the years to expand their authority and responsi-
bilities, they discovered that the wall between the federal government and the states was
not as impregnable as most of the Framers had apparently supposed. The Constitution’s
provisions and language leave ample room for a variety of federal-state relations. Thus
nationalization of public policy reshaped federalism largely unfettered by constitutional
constraints and without triggering a constitutional crisis. Nationalization did not just
happen, however. As many problems outgrew state borders, pressure usually built for a
greater national role. But whether the federal government actually assumed responsi-
bility remained—and still is—a political decision, reflecting as much the competition
of interests as any objective rationale for national action. The buildup of antislavery

103Chapter 3: Federalism

sentiment in the northern states, which led to Abraham Lincoln’s election in 1860, the
South’s secession, and the Civil War, remains the nation’s most bitter and tragic conflict
involving federalism. Yet whereas the war was nominally triggered by a dispute over the
bounds of federal authority to abolish slavery, it should be seen as a larger political and
moral clash that broke down into military conflict rather than a battle over the principles
of federalism.

The Paths to Nationalization
Throughout the first half of the nineteenth century, the United States remained a nation
of segmented communities whose commercial intercourse required minimal coordina-
tion across states. But as American workers began to produce more and more goods to
be traded on distant markets, lawmakers began to shift their attention from strictly state
and local matters to national problems and solutions. With growth, industrialization,
urbanization, and the development of national transportation and communication sys-
tems, the nation’s appetite grew for public goods that outstripped the scope and resources
of local communities and states.13 In the early 1870s, for example, the farm states tried
in vain to prohibit the railroads from engaging in rate discrimination and exorbitant
charges. They finally turned to Washington for regulation, and in 1887 Congress obliged
by passing the Interstate Commerce Act. A similar process spurred the federal govern-
ment to enforce national food safety standards, enact antimonopoly laws, and undertake
numerous other services.

The nationalization of public policy, which altered federal-state relations, was pro-
pelled by a rationale, or logic, that grew out of the requirements of collective action. Played
out historically, the logic of collective action has assumed several forms. First, Americans
have at times decided collectively to adopt policies of such magnitude and scope that
they outstripped the resources of states. The result has been a historic movement of large
blocks of domestic policy from the state capitals to Washington. We soon examine two
important historical instances of this movement: Franklin Roosevelt’s New Deal and
Lyndon Johnson’s Great Society.

Second, states have solicited federal intervention when they could not solve their
problems by working together individually. Considering that the U.S. mainland is carved
into forty-eight separate state jurisdictions, one can easily imagine a great variety of issues
arising that require states’ cooperation. And yet the Constitution prohibits formal inter-
state agreements (Article I, Section 10) in the absence of the national government’s con-
sent. Voluntary cooperation, by definition, holds the potential for reneging, particularly
when serious, costly commitments are required. For that reason, following the 1906 San
Francisco earthquake, which overwhelmed the capacity of California’s state government
to respond to $500 million in property damage and assist over 250,000 homeless residents,
the states welcomed a national insurance policy against such disasters even though it
meant surrendering control of disaster relief to federal agencies.

104 Part I: The Nationalization of Politics

Finally, national majorities have increasingly
insisted on federal involvement in what were
formerly state and local matters. Sometimes
mere expediency is at work as a national major-
ity finds it easier to succeed in Washington than
in each of the states. Similarly, companies with
business around the country sometimes lobby
for national regulations simply so that they do
not have to deal with fifty different states’ poli-
cies. On other occasions, the cause has been just
and noble, as the history of civil rights policy in
the United States shows. In asserting its author-
ity to protect the rights of African Americans—
from the Civil War in the 1860s to the civil rights
laws a century later—the national government
breached the separation of national from state
spheres of control. Although the impact of
civil rights on federalism has been profound,
it is a subject with broad implications for all
Americans and warrants separate consideration
(covered in Chapter 4).

Historic Transfers
of Policy to Washington
President Roosevelt’s New Deal, enacted in the
1930s, and President Johnson’s Great Society
program, realized in the mid-1960s, represented
two equally historic shifts toward nationaliza-
tion. In addition to broadening the scope of fed-
eral responsibilities, these watershed programs
followed the election of large national majorities
to Congress from the president’s party, with an
apparent mandate to create a broad new array of
collective goods.

Roosevelt’s New Deal was a comprehen-
sive set of economic regulations and relief pro-

grams intended to fight the Great Depression (1929–1940). The innovation of the New
Deal stemmed less from the form of its policies than from their size and scope. During
Roosevelt’s first two terms (1933–1941), he and the huge Democratic majorities in
Congress established economic management as one of the national government’s primary

One major step toward nationalization that literally connected
states was the building of the Interstate Highway System, now
46,837 miles long, beginning in the late 1950s. Promoted by
President Dwight D. Eisenhower, this massive public works project
allowed people and products to move much more quickly within
and across states, accelerating the nation’s postwar economic
boom. Yet it also imposed sharp costs—economic and cultural—
on the small towns bypassed by the new highways. Many of the
“mom and pop” diners, gas stations, and souvenir shops located
on the main streets of towns along old roads such as Route 66
disappeared. (Their passing was mourned in the animated film
Cars, which tells the sad tale of what happened when Interstate
40 bypassed the fictional town of Radiator Springs.) Because
decisions about the new highway system were made at the federal
level, small-town residents who might have been able to influence
their local or state governments had little say in the national policy.
Photo 12/Alamy Stock Photo

105Chapter 3: Federalism

responsibilities. Federal policy took two basic forms: regulating and financing (and with it
prescribing) state action. Despite the continuing debate between present-day Republicans
and Democrats over the proper division of federal and state responsibilities, no one has
seriously proposed dismantling the framework of economic management constructed by
the New Deal.

At the outset of the Depression, 40 percent unemployment rates were not uncommon
in many communities. The states, responsible for welfare programs, had to reduce ser-
vices to fend off insolvency. In the process, they also had to abandon people in need of
help. When the Roosevelt administration’s offer to fund 90 percent of the costs for relief
and new make-work programs finally came, the principle of federalism did not prevent
state leaders from cheerfully accepting the help.* All forty-eight states quickly signed
up for the Works Progress Administration, Old Age Assistance, Civilian Conservation
Corps, Social Security, and other federally sponsored public assistance programs. During
these Depression years the dramatic growth in federal spending, coupled with corre-
sponding reductions in funds at the state and local levels, provided evidence of the sharp
shift from state to federal responsibility for social programs (depicted in Figure 3.3).

Another great wave of nationalization of domestic policy occurred in the mid-1960s.
Elected in 1964 in an even larger landslide than FDR’s 1932 victory, Lyndon Johnson and
the overwhelmingly Democratic Congress launched the War on Poverty as part of their
Great Society agenda. In 1964–1965 Congress passed more than a hundred new programs
that would be carried out by states but funded (and controlled) through federal grants,
spending over $5 billion. The largest of these was Medicaid, which provides health insur-
ance to low-income families, senior citizens in nursing homes, and disabled Americans.
Other traditional state and local responsibilities such as school funding, teacher training,
urban renewal, and public housing became important federal responsibilities. As with the
New Deal, these grants subsidized state programs that implemented national goals.

But all these grants came with strings attached. To qualify for funding, state and local
authorities had to follow detailed programmatic guidelines prescribing how funds were to
be spent. These strings greatly expanded the federal government’s power, even over ser-
vices such as schools that are still funded mostly by state and local governments. Because
states now rely on the federal education grants that were created during the Great Society
era, they have been forced to accept federal policy dictates such as the No Child Left
Behind testing requirements and the Common Core in order to keep federal funds flow-
ing. Without paying all of the costs of education, the federal government can still exert
much control over it. Even though grant programs transfer money from the national to
state governments, they often transfer authority back to Washington, DC.

*Unlike the federal government, most state governments are forbidden by their constitutions from enacting
annual budgets that incur deficits. But although they may have to balance their budgets, most states can and do
frequently borrow billions of dollars to build schools, roads, parks, dams, hospitals, canals, railroads, and other
vital parts of their infrastructures.

106 Part I: The Nationalization of Politics

Nationalization—The Solution
to States’ Collective Dilemmas
When modern state governments encoun-
tered the same collective action dilemmas that
prompted their eighteenth-century counterparts
to send delegates to Philadelphia, they solved
these dilemmas in the same way—by shifting
responsibility from the state to federal authorities.
Every kind of collective action problem intro-
duced in Chapter 1, from simple coordination to
the prisoner’s dilemma, has frustrated state action
at one time or another and repeatedly required
states to turn to Washington for help.

Coordination Problems
A nation composed of fifty states inevita-
bly faces coordination problems—some dra-
matic, some mundane. Even when the states
agree to cooperate, thereby allowing each to
deal more effectively with a common respon-
sibility, they may have difficulty figuring out
precisely how to work together. For example,
until 1986, the principle that each state admin-
isters its own driver’s license laws appeared
unassailable. But after heavy lobbying by state
officials, Congress passed the Commercial
Motor Vehicle Safety Act, which standardized
state driver’s licenses for interstate truckers
and created a bureau within the Department
of Transportation to centralize traffic violation

records. What prompted federal intervention was the practice common among truck-
ers of obtaining licenses in several states to maintain a valid license regardless of the
number of traffic tickets accumulated. Centralized record keeping offered a far simpler
solution to state coordination than requiring each state to update its records with those
from every other state. Disgruntled truckers pointed to the new law as another exam-
ple of interference by “heavy-handed Washington bureaucrats,” but in fact it precisely
fulfilled the states’ request.

Even when the need for coordination is evident, there is no guarantee that the states
will agree to shift this responsibility to Washington. In addition to the transaction costs

� FIGURE 3.3 Nationalization of Domestic
Policy during the Depression

Percentage of nonmilitary spending

















Local Federal State

Source: John Joseph Wallis, “The Political Economy of
New Deal Fiscal Federalism,” Economic Inquiry
29 (July 1991): 511.

Note: About half of the increase in federal spending in this figure took
the form of direct financial support to indigent citizens.

107Chapter 3: Federalism

of conforming to national standards, state politi-
cians may worry that surrendering authority for one
accepted purpose might lead the federal government
to undertake less desirable policies. Such consid-
erations are holding up agreement in Congress to
strengthen national regulation of electrical transmis-
sion across the country. Every state exercises some
regulatory control over its electricity industry. In an
earlier era, when most utilities were local monopo-
lies with in-state generation and transmission, state-
level policy made sense. Today, however, power flows
through an extensive continental grid; residents of
one state consume electricity from dozens of sources
throughout the region. As demonstrated by a mas-
sive blackout that began with a minor power outage in
Ohio but cascaded across the East Coast on August 13,
2003, state regulation no longer works. The question
still being deliberated in Congress and the states is, can
regulatory coordination be delegated to the Federal
Energy Regulatory Commission without surrendering
state control over rates? (Nearly eighteen years after
the blackouts of the Midwest and East Coast, members
of Congress from the South and Northwest still have
not agreed to new federal authority for fear that their
cheap local electricity would chase market prices and
drive up their local costs.)

Reneging and Shirking
In the nation’s early years, states agreed to a course of common action but then failed to
honor their commitments. The Constitution and national laws solve many of these dilem-
mas by authorizing the federal government to take direct action in raising resources and
administering policy. However, in certain situations national responsibility and jurisdic-
tion either are undecided or allow the states a prominent role. Movements to reduce pol-
lution and conserve natural resources, among the most pervasive and thorny challenges
to effective collective action in recent years, have inspired innovative approaches enlist-
ing federalism as a solution. Both problems qualify as tragedies of the commons, intro-
duced in Chapter 1. No one wants to breathe polluted air, but without some mechanism
to arrange and enforce agreements, everyone continues to pollute under the assumption
that doing otherwise will not by itself clean up the atmosphere (that is, promote the public

Franklin Roosevelt’s New Deal included the federal Works
Progress Administration, which among other employment
opportunities promoted “Jobs for Girls and Women.”
Courtesy of the Library of Congress Prints & Photographs Division

108 Part I: The Nationalization of Politics


Free Federal Dollars?
No Thanks, I’ll Take
Political Currency Instead
A critical component of President Obama’s
Affordable Care Act—popularly known as
“Obamacare”—was the expansion of state
Medicaid programs. Federal lawmakers (or,
to be more specific, the Democratic federal
lawmakers who passed the ACA by the slimmest
of majorities) wanted to provide health coverage
for Americans who held low-paying jobs at
businesses that did not offer health insurance
benefits. Because Medicaid programs—which
are run by the states but funded mostly by the
federal government—already cover many low-
income individuals, it made policy sense to give
states the money to cover the working poor. By
requiring states to cover families making up to
$31,000 a year under Medicaid, and paying for
all this expansion for many years with federal
dollars, the ACA was expected to bring health
coverage to 17 million people spread across
the nation. Then the courts, and political logic,

The Supreme Court’s 2012 National Federation
of Independent Business v. Sebelius decision,
which upheld the constitutionality of nearly
all parts of Obamacare, contained one
narrow ruling that proved to be enormously
consequential. The court ruled that Congress
could not force the states to expand Medicaid by
threatening their existing Medicaid funding, but
it did not take away the vast financial incentive
to expand these state programs with billions of
federal dollars. Essentially, the Supreme Court
took away the federal government’s stick, but
not the carrots it could offer states. State leaders
were granted new policy discretion. They could,
at no cost to their state budgets, provide health
care to many of their residents, making doctors

and hospitals happy for the new business at the
same time. Or they could leave federal dollars on
the table, angering the powerful medical lobby
and leaving many of their most needy residents

To the shock and dismay of many observers,
eight years after this decision, thirty-eight states
expanded their Medicaid programs, but twelve
have so far refused the free federal dollars. This
has left many millions of low-income Americans
without health insurance, stymieing a major
component of the ACA. Why did so many states
turn down an apparent free lunch? Because
accepting Obamacare dollars and looking
complicit in an unpopular policy sent down
from Washington, DC, ran counter to the policy
preferences and political incentives of many
Republican governors and state legislators.
Many had been elected with campaigns that
railed against Obamacare’s individual insurance
mandate, coming to power in red states that
voted overwhelmingly for Mitt Romney in 2012
and Donald Trump in 2016. Yet with the Supreme
Court upholding the mandate and attempts
to repeal the ACA failing in the first year of
the Trump presidency, the only way to oppose
Obamacare was to fight Medicaid expansion.
And in the eyes of conservative governors,
taking federal money is not “free”: these are, after
all, taxpayer dollars. To register their opposition
to Obamacare, and to follow the fiscally
conservative path that brought them to office,
state leaders—especially those associated with
the Tea Party—have made this a central political
issue in their states. All but one of the states
that refused Medicaid expansion have been
led by Republican governors. Virginia adopted
the expansion in May 2018 after a five-year
fight between Republican state legislators and
Democratic governors, and Idaho implemented

109Chapter 3: Federalism

its plan in January 2020 after passing a ballot
initiative in 2018. In a concrete sense, these are
proxy battles over a defining national issue of

the day—mandatory national health insurance—
being played out in the states while Washington,
DC, remains in a political deadlock.

� MAP 3.1 The Expansion of State Medicaid Programs under Obamacare

Expanding or considering expanding coverage
Not expanding coverage

State Expansion of Medicaid, 2020
Hillary Clinton, Democrat
Donald Trump, Republican

Electoral College Results, 2016

Sources: Adam Liptak, “Supreme Court Upholds Health Care Law, 5–4, in Victory for Obama,” New York Times, June 28, 2012;
Gabriel Trip, “After First Plan Is Blocked, Virginia Governor Reduces Medicaid Expansion Goals,” New York Times, September 8,
2014; Kaiser Family Foundation, “Status of State Action on Medicaid Expansion Decision,” October 21, 2020, https://www.kff

good or lead to the betterment of the “commons”). Coordinated national policies are nec-
essary to solve this collective action problem, but they can sometimes emerge through
state pressure.

The clearest example of this comes from recent responses to the most pressing envi-
ronmental concern of our era: climate change. Climate change presents a policy chal-
lenge that crosses state borders. Exhaust from the tailpipe of a California car can cause
smog in the Los Angeles basin, but the carbon emissions can also trap heat in Earth’s
atmosphere and affect the global climate. Because many people are affected by the car’s
emissions, not just its driver, the environmental damage done represents an externality,
an effect felt by more people than just the one who chose to cause it. When the federal
government made little effort to combat greenhouse gas emissions, a group of states
pushed the United States toward national action. California passed a landmark climate
change bill under Governor Arnold Schwarzenegger’s leadership and was soon followed

110 Part I: The Nationalization of Politics

by fourteen states from Arizona to Maine. The federal government initially opposed the
state laws, arguing that they could create a policy patchwork, but after Obama’s election,
the EPA embraced California’s tough fuel economy standards, making them the national
standard by 2016. Though the first states to act may have worried about paying the full
costs of environmental protection while other states shirked, the creation of a national
policy to address the negative externality of greenhouse gas emissions solved this collec-
tive action problem.

Of course, when political control of the national government shifts, so will national
policy. Soon after California’s emissions law was turned into a national standard by the
Obama administration, the election of Donald Trump brought a shift in a different pol-
icy direction—and against state flexibility. In March 2020, the Trump administration
relaxed the Obama-era fuel economy standards; instead of requiring that automakers pro-
duce cars that average fifty-four miles per gallon (mpg) by 2025, Trump’s Environmental
Protection Agency lowered the requirement to forty mpg by 2026. This move also created
a national standard, preventing states from setting their own requirements. Two months
later, twenty-two states joined California in suing to stop the new rule. “This rollback
will result in billions of tons of additional emissions of the heat-trapping gases that cause
global warming,” argued the president of the Union of Concerned Scientists, which joined
the suit. It also rolled back states’ rights and expanded federal power.14

California lawmakers took a different approach to addressing what they saw as the
tragic externality brought by the patchwork of state gun laws. In July 2019, a nineteen-
year-old legally purchased a semiautomatic AK-47 rifle, along with a seventy-five-round
drum magazine and five forty-round magazines, in Nevada. He would not have been able
to make these purchases in neighboring California, which bans the sale of assault weap-
ons, ammunition magazines that hold more than ten rounds, and any sale of guns to those
under twenty-one. But the gunman was able to drive to Gilroy Garlic Festival in rural
northern California and shoot sixteen people, killing three. His gun was not the first to
be purchased in Nevada and then brought to the Golden State, where gun laws are much
stricter. In 2017, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives traced
1,554 of the guns they recovered in California to purchases made in Nevada. California’s
lawmakers viewed the violence committed using these guns as a hugely negative external-
ity. So a few weeks after the Gilroy mass shooting, twenty-seven Democratic lawmakers in
the state wrote to the Nevada State Assembly Speaker Jason Frierson to propose a summit
to coordinate policy between the states. Recognizing the limits of one state’s power to solve
policies acting alone, they wrote that “this tragedy underscores the need for California to
work closely with neighboring states to close loopholes and advance common sense gun
safety measures.”15

Cutthroat Competition
Under the Articles of Confederation each state was free to conduct its own inter national
trade policy. This arrangement allowed foreign governments and merchants to exploit

111Chapter 3: Federalism

competition among the states to negotiate profitable trade agreements. The losers
were American producers and the states, which found themselves in a classic prison-
er’s dilemma. Their best strategy would have been first to agree among themselves on
a single rate (to form a kind of cartel) and then to negotiate with Britain from a united
front. But this approach would have required that none of the states break rank when
the British offered to reward the first “defector” with an especially lucrative, sweet-
heart deal. Not wanting to be played for the sucker, all states underbid one another,
or engaged in cutthroat competition. Searching for a solution, both nationalists and
advocates of states’ rights readily agreed at the Constitutional Convention that the
states were best served by the national government assuming control in foreign affairs,
including trade.

At various times cutthroat competition has prompted state officials to lobby
Washington to prevent bidding wars. When the national government defended a 1937
federal minimum wage law before the Supreme Court, it reminded the justices that rather
than usurping state prerogatives, Washington was actually serving the states: “State legis-
lators . . . over a period of time have realized that no state, acting alone, could require labor
standards substantially higher than those obtained in other states whose producers and
manufacturers competed in the interstate market.”16

Environmental regulation is another area in which the national government has taken
action. To lure new business, states sometimes are tempted to relax their environmental
standards to give them a competitive edge over their neighbors. Thus one state’s strong
environmental policies may expose it to other states’ gamesmanship. As much as state
officials like to complain about the policies of the EPA, the presence of national standards
insulates environmental protection from cutthroat competition.

Competition among states can take other forms as well. Companies considering relo-
cating facilities will strategically select two or three “finalist” sites in different states and
then sit back and let them bid against one another by offering tax breaks or special ser-
vices. This happened in early 2020, when the state of Delaware provided $4.5 million in
taxpayer subsidies to Amazon in order to convince the company to locate its largest-ever
fulfillment center on the site of a demolished auto factory in Wilmington. For Delaware
officials, it looked like a good deal; the 3.7-million-square-foot facility would bring an
estimated one thousand jobs to the state. But it would be even better for Delaware and
other states if they did not have to bid against each other to provide subsidies to a com-
pany that earned $12 billion in after-tax profits in 2019. “Enough is enough,” declared
one Delaware lawmaker after the deal. “Stop these gifts to these obscenely wealthy

Although the states generally would be better off if they could avoid this competition,
none can afford to do so. Each state will raise its bid until the costs of subsidizing a new
company through property improvements and reduced taxes exceed the expected eco-
nomic benefits. States also face incentives to engage in a race to the bottom in social ser-
vices by cutting back on things like the size of the monthly check a state pays to welfare

112 Part I: The Nationalization of Politics

recipients so that it will not become a “welfare magnet” that attracts the low-income res-
idents of its neighbors. There remains much debate over whether states do indeed race
toward the bottom, but the incentives that a decentralized welfare policy creates to do so
might harm society’s most vulnerable.18

One of the starkest examples of cutthroat competition came in the spring of 2020, as
states scrambled to secure the COVID-19 testing supplies, personal protective equip-
ment (PPE), and ventilators necessary to address the growing health threat. With the
national stockpile of medical supplies running empty, Connecticut governor Ned Lamont
concluded that “we are on our own.” Governor Larry Hogan of Maryland declared that
his state was “flying blind” without enough testing supplies, and New York governor
Andrew Cuomo pointed out how a patchwork approach to obtaining supplies meant that
“you now literally will have a company call you up and say, ‘Well, California just outbid
you.’ It’s like being on eBay with 50 other states, bidding on a ventilator.”19 California’s
governor, Gavin Newsom, did not deny the charge. After announcing that his state
would spend $1 billion to purchase 200 million medical masks per month, he explained
that “we’ve been competing against other states, against other nations, against our own
federal government . . . and we’re not waiting around any longer.”20 In a policy realm that

During the COVID-19 pandemic, states bid against each other in a desperate push to get as much protective
equipment as possible for their health care workers—like this one preparing to enter an intensive care unit in
Texas—in an example of cutthroat competition between states.
MARK FELIX/AFP/AFP via Getty Images

113Chapter 3: Federalism

could not be more vital, the costs of cutthroat competition became painfully clear during
the pandemic.

The Political Logic of Nationalization
As countless political controversies teach us, promoters of a policy will sometimes try to
shift it from the states to the national government because either they expect more sym-
pathetic treatment in Washington or they find it easier than lobbying fifty state govern-
ments. National campaigns for legislation banning automatic weapons and handguns,
regulating hazardous waste disposal, and mandating special education programs in public
schools are instances in which “state” issues have been strategically shifted to Washington.

If a cause enjoys widespread national support, lobbying Congress is far more efficient
than lobbying fifty state legislatures. After all, a single federal law can change a policy in all
fifty states. In 1980 a mother whose teenage daughter was killed by a drunk driver formed
Mothers Against Drunk Driving (MADD), which quickly mushroomed into a national
organization with thousands of members. Initially, MADD pressed state legislatures for
stiffer laws and higher drinking ages. And although all proclaimed their enthusiasm for
removing drunks from the highways, those states with lower drinking ages had a financial
interest in maintaining the status quo. Such states profited from underage customers who
visited from neighboring states with higher legal drinking ages. As a result, variations in
the states’ drinking ages perversely encouraged some young people to take to the high-
ways in search of alcohol.

In 1984 MADD took its case to Congress.* Few politicians proved willing to defend
federalism against the movement to reduce drunk driving. In 1985 Congress passed legis-
lation that instituted a simple, effective way to regulate drinking age laws. If a state failed to
raise its drinking age to twenty-one in 1986, it would lose 5 percent of its federal highway
funds. Failure to do so in 1987 would trigger a 10 percent deduction. All the states got
the message and promptly raised the drinking age by 1988. They also brought suit in the
Supreme Court, claiming extortion and federal intrusion into strictly state jurisdictions.
The Court sided with the national government.21

Even those who do not desire national action sometimes invite it to avoid burdensome
and varied regulations from each of the states. In recent years many state attorneys general
have charged airlines with practicing illegal “bait and switch” advertising when they run
local newspaper promotions for steeply discounted fares that few customers find avail-
able. The airlines, however, have successfully evaded state prosecution by persuading the
Department of Transportation to assert its preemptive federal authority to regulate air-
line rates and advertising. Thus even businesses wanting to remain free of any government

*MADD did meet some resistance in the low-drinking-age states that benefited economically from the com-
merce in alcohol.

114 Part I: The Nationalization of Politics


Maryland Declares Its Political Independence
Partisan Passage of the
“Maryland Defense Act”
When red-state voters deliver a sweeping
Republican victory at the federal level, what can
the political leaders of a blue state do? After
President Trump’s surprise victory in 2016 left
the GOP in control over every branch of the
national government, Democratic lawmakers
across the states looked for ways to fight back.
Never considering an all-out rebellion or
challenging the legitimacy of the election—an
important adherence to the nation’s norms since
the end of the Civil War—they looked for legal
avenues to protect the policies they had passed
in their states. They didn’t mind scoring political
points, too, in states where voters were aligned
with them against President Trump.

In deep-blue states like New York, California,
Washington, Hawaii, Delaware, Oregon, and
New Jersey, where Democrats hold all the levers
of political power, launching and funding state
lawsuits against the federal government has
been a straightforward task. Because it is in
everyone’s political and policy interests to join
the resistance, fully Democratic states have led
the legal charge against Trump administration
policies. The political and legal strategy has been
much more complicated, though, in a state where
control of the legislature and governor’s office is
divided between red and blue parties.

That is exactly the dilemma faced by Democrats
in the Maryland state legislature in 2017. Though
Democrats ruled both houses of the legislature by
overwhelming margins in a state where Donald
Trump received less than 34 percent of the vote,
moderate Republican Larry Hogan has served as
governor since his election in 2014. Democratic

lawmakers worried that Republican governor
Hogan would not aggressively pursue lawsuits
against the Trump administration. Their fears
were confirmed when Hogan did not respond
to the legislature’s request that he challenge
President Trump’s ban on travel by visitors from
predominantly Muslim nations. So, just three
weeks after President Trump’s inauguration, they
changed the balance of power within Maryland
government to bolster the fight against the
federal administration.

With the party-line passage of the “Maryland
Defense Act,” Democrats in Maryland’s
legislature gave the state’s attorney general the
unchecked power to sue the president on a range
of issues. Before passage of the act, the governor’s
approval was needed to launch a lawsuit.
Yet the act empowered the attorney general,
independently elected Democrat Brian Frosh, to
sue on his own without first obtaining approval
by the governor. Attorney General Frosh, and
all his successors, were also empowered to
file lawsuits without seeking the legislature’s
approval. This amounted to “an unprecedented
expansion of power for the office,” in the words
of the Baltimore Sun, reshaping the formal lines
of authority within state government to fight a
political battle. The act outlined nine areas in
which the attorney general could unilaterally
move to sue, ranging from “protecting the
health of the residents of the State and ensuring
the availability of affordable health care” to
“protecting civil liberties” and “protecting the
natural resources and environment of the State.”

In the first year of the act, Frosh filed suits against
the travel ban, to protect the state’s greenhouse
gas emissions and energy efficiency standards, to
safeguard Obamacare, to maintain net neutrality,
and to protect Deferred Action for Childhood

115Chapter 3: Federalism

regulation may prefer to deal with one federal agency rather than having to fend off regu-
lation attempts from fifty states.*

Perhaps the most compelling strategic reason for a group to prefer national over state
policy is that the national arena may be the only place in which it can hope to prevail, espe-
cially when a policy is opposed in the community where it would need to be enforced.
This situation characterized civil rights in the South during the 1960s, but virtually any
domain of public policy in which the state and national governments share responsibil-
ity is subject to this political maneuver. After increasing their majority in both the House
and the Senate in the 2004 elections, Republicans opened the 109th Congress by promptly
passing a law that moved most class-action lawsuits from state to federal court jurisdic-
tions. Some state courts had earned reputations for favoring plaintiffs, which aggrieved
Republican-supporting business groups and endeared them to Democratic-supporting
trial lawyers’ associations.

Perhaps no area of national policy has so thoroughly been reshaped by this dynamic
than the extension of environmental protections at the expense of state and local constit-
uencies. Protection of environmental resources can be costly—directly or indirectly—in
lost jobs and business. Either way, local residents typically pay the bulk of the costs. Idaho
ranchers worry that the reintroduction of wolves in the nearby national parks will endan-
ger their sheep. The Navajos’ coal-burning, electricity-generating plant in Arizona may
blanket the Grand Canyon in dense fog, but they prefer the profits gained from selling
electricity to a national market. The lumber industry in northern California and Oregon

Arrivals (DACA) participants. All were attempts
to frustrate Trump administration policies as they
were being implemented in Maryland and other
states. They were thus declarations of political
and policy independence for Maryland from the
decisions being made just across its border, in the
District of Columbia. Empowering the attorney
general to do so required giving him the right to
work around the authority of both the Republican
governor and the Democratic legislature, a

significant change in the governance structure
of Maryland that could only be justified by the
intensity of the partisan and policy battles that
followed Donald Trump’s victory.

Sources: Erin Cox, “Maryland Attorney General Frosh Awarded
Expanded Power to Sue the Trump Administration,” Baltimore
Sun, February 15, 2017, and Maryland Office of the Attorney
General, “Maryland Defense Act: 2017 Report,” Annapolis,
Maryland, December 2017.

*Similarly, major software companies, including Microsoft, assembled in 2004 to respond to Utah’s law requir-
ing any company loading cookies and other software onto a personal computer via the Internet to first obtain
permission from the computer owner. With several other states poised to pass similar legislation, the software
firms feared patchwork regulations would hamstring their capacity to innovate in this area. John Schwartz and
Saul Hansell, “The Latest High-Tech Legal Issue: Rooting Out the Spy in Your Computer,” New York Times,
April 26, 2004.

116 Part I: The Nationalization of Politics

believes jobs will be imperiled if it must curtail the harvest of old-growth forest to protect
the endangered spotted owl.

The rest of the country, by comparison, bears little of these costs. It can “afford” the
appropriate environmental measures far better than can those whose livelihoods are
adversely affected by them. Restoring the original ecology of Yellowstone National Park,
maintaining a smoke-free Grand Canyon, and protecting an endangered owl are all desir-
able and essentially free public goods. Thus conflicts arising over the environment fre-
quently pit local resource users (such as ranchers and developers) who bear the costs of
environmental regulation against nationally organized environmental constituencies that
do not.

As James Madison emphasized in Federalist No. 10, states and the national govern-
ment combine the citizenry’s preferences into different groupings, with the result that
the two levels of government may adopt different, even opposite, policies to address the
same problem. Although Madison was prepared to take his chances with national major-
ities, whose decisions, he believed, would be moderated by the collective preferences of a
broad, diverse nation, he also knew what we learned in our discussion of sanctuary cities
and of federal environmental policy: that national majorities will at times impose costs on
local constituencies. Thus federalism presents opportunities for two kinds of majorities—
state and national—to pursue their interests in competition with each other. For better
or worse, national majorities have the institutional resources to nationalize many policy
questions that once were the exclusive domain of state majorities.

Modern Federalism
Early in the twenty-first century, the national government’s primacy in setting domes-
tic policy is secure, even in domains that once belonged exclusively to the states.
Whether through outright takeover of a function or by selective financial inducements,
Washington can pretty much dictate state policy when its policymakers are so inclined.
Some observers find recent Supreme Court decisions beginning to fence in the federal
government’s ability to dictate policy. Even so, the shift has been modest and easily cir-
cumvented by an alternative strategy of financial inducements.

The National Government’s Advantage in the Courts
Indicative of how far nationalization has shifted the balance of power, today’s constitu-
tional litigation over federalism typically concerns direct efforts by the federal govern-
ment to regulate the activities of state and local governments and their employees. In
Garcia v. San Antonio Metropolitan Transit Authority (1985) the Supreme Court approved
the application of federal wage-and-hour laws to state and local employees. Writing for the
majority, Justice Harry Blackmun dismissed the Tenth Amendment as too ambiguous to
guide federal-state relations. But this was no great matter, he added, because the proper
relations between the states and the national government were protected in other ways.

117Chapter 3: Federalism

The states’ “sovereign interests,” he wrote, “are more properly protected by procedural
safeguards inherent in the structure of the federal system than by judicially created limita-
tion on federal power.” Because members of Congress come from the states, the majority
opinion concluded, “the political process ensures that laws that unduly burden the States
will not be promulgated.”22 Such an argument may have befitted federalism during the
days when senators really were agents of their state legislatures, but, at the time of Garcia
v. San Antonio, the Court had little basis for expecting the states’ interests to win a sym-
pathetic audience in Washington. Indeed, this decision illustrates just how much over
the years the Supreme Court favored the national government in refereeing federal-state

In recent years the Supreme Court has begun to take a more circumspect view of
federal authority and has sought to preserve some semblance of state independence in
federal-state relations. For example, in United States v. Lopez (1995) the Court narrowly
decided in favor of a student who had been caught carrying a handgun onto campus in
violation of the federal Gun-Free School Zones Act of 1990.* For the first time in many
years the Court held that some “empirical connection” needed to be established between
a law’s provisions and its actual effect on interstate commerce before the national govern-
ment could make policy that would supersede state policy in the traditional domains of
state jurisdiction.23 The Court first applied the Lopez rationale in 2000, when it overturned
the 1994 Violence Against Women Act allowing female victims of gender-motivated
violence to sue their attackers in federal court. Writing for a narrow majority, then–
chief justice William H. Rehnquist argued that Congress had exceeded its commerce
clause authority by intruding into state control of law enforcement. Unpersuaded by
Congress’s concerted effort to show that violence affected interstate commerce, Rehnquist
responded, “Simply because Congress may conclude that a particular activity substan-
tially affects interstate commerce does not necessarily make it so.Ӡ

Another case in which the states won a victory based on a new interpretation of the
commerce clause may cost you money the next time you buy something online. In 1967,
the Supreme Court ruled that states could not collect sales tax from a seller that did not
have a “physical presence” in that state. The stakes of the decision grew into the billions
when Internet sales exploded. In the 2018 South Dakota v. Wayfair, Inc. case though, the
Supreme Court decided that the old “physical presence” requirement was outdated in our
virtual world, allowing states to pass laws requiring that Internet sellers such as Wayfair
had to collect sales tax every time a resident of that state made a purchase online. For this
decision, Internet bargain hunters can blame a diverse coalition in the 5–4 majority that
brought together Clarence Thomas with Ruth Bader Ginsburg.

*The Gun-Free School Zones Act established a zone around public schools in which anyone caught with a gun
was charged with a federal felony. United States v. Lopez, 514 U.S. 549 (1995).
†Elizabeth A. Palmer, “High Court Further Circumscribes Congress’ Power in Ruling on Violence Against
Women Act,” CQ Weekly, May 20, 2000, 1188. The Court again invoked Lopez in 2001, ruling by a 5–4 vote that
state employees could not use the federal Americans with Disabilities Act (covered in Chapter 4) to sue their

118 Part I: The Nationalization of Politics

Yet in other recent decisions states have lost. The Court in 2005 rejected the Lopez-
based argument that California’s and nine other states’ laws protecting the noncommer-
cial cultivation of marijuana for personal, medical use prevent the federal government
from enforcing national antidrug laws. However heartening recent small victories may be
for defenders of states’ rights, the medical marijuana decision reminds us that they have
not seriously undermined the extensive authority nationalization has thrust on the federal

Preemption Legislation
Today the clearest and most unequivocal expression of nationalization’s impact on pub-
lic policy appears in the growth of preemption legislation—federal laws that assert
the national government’s prerogative to control public policy in a particular field.
Preemption owes its existence to the supremacy clause and its frequent use to the nation-
alizing forces described earlier. Over the 150 years prior to the New Deal, Congress
enacted eighty-three laws that in some way substituted federal policy for that of the states.
From 1933 to 1969, 123 such statutes were adopted, and since 1969 twice that number.24
If preemption were all that had changed federal-state relations, modern American feder-
alism might still be described as dual. The national government’s “sphere of sovereignty”
would merely have grown at the expense of the states. But preemption accounts for only a
small part of the impact of nationalization on federal-state relations. Generally, the juris-
dictions of the states have not been curtailed so much as the national government has
joined with the states in formulating policy. The result is the shared federalism described
earlier in this chapter.

A cursory examination of trends in government growth during the twentieth century
might raise the question of whether the impact of nationalization on reshaping modern
federalism has been overstated here. Today states and localities employ more workers
than ever before, their largest increases occurring since the nationalizing thrust of the
New Deal (refer to Figure 3.4). Paradoxically, state governments have grown because of,
rather than despite, nationalization. Just as the New Deal grafted national policy onto state
administrations, much federal domestic policy continues to be implemented through the
states instead of directly through the federal bureaucracy.

The national government has developed two ways—the carrot and the stick—to
induce cooperation from the constitutionally independent states. The carrot consists of
financial inducements, usually in the form of grants to states. The stick is regulation and
mandates. Since the 1980s, chronic federal budget deficits have led national politicians to
rely more heavily on the stick to achieve their policy objectives, and thus pass the costs on
to the states.

The Carrot: Federal Grants to the States
Although federal aid dates back to the Articles of Confederation, when the national gov-
ernment doled out public lands to the states, only during the past half century have federal

119Chapter 3: Federalism

� FIGURE 3.4 The Postwar Growth of Government Occurred at the Local Level

Number of public civilian employees (millions)


Local State Federal


















Sources: For 1949, 1952, 1954, 1959, 1964, 1969–1988, and 2012: data from U.S. Advisory Commission on Intergovernmental Relations,
Significant Features of Fiscal Federalism, 1990, vol. 2 (Washington, DC: Author, 1990), 177; for 1989–1992, 1994, 151; for other years: data from
U.S. Census Bureau, Historical Statistics of the United States, Series Y189–198 (Washington, DC: U.S. Government Printing Office, 1975), 1100;
U.S. Census Bureau, Statistical Abstract of the United States, 2000 (Washington, DC: U.S. Government Printing Office, 2000), Tables 524 and
525; U.S. Census Bureau, Statistical Abstract of the United States, 2004 (Washington, DC: U.S. Government Printing Office, 2004), Table 453; U.S.
Census Bureau, Statistical Abstract of the United States, 2008 (Washington, DC: U.S. Government Printing Office, 2008), Table 448; U.S. Census
Bureau, Statistical Abstract of the United States, 2010 (Washington, DC: U.S. Government Printing Office, 2012), Table 450; U.S. Census Bureau,
Statistical Abstract of the United States, 2012 (Washington, DC: U.S. Government Printing Office, 2012), Table 461; U.S. Census Bureau, American
Fact Finder, “Government Employment & Payroll,” accessed at, and
Congressional Research Service, “Federal Workforce Statistics Sources,”

grants-in-aid become an important feature of intergovernmental relations. By one count,
a mere handful of these programs that provide money to a state for a specific purpose
existed before the New Deal; today they number in the hundreds. Typically these grants
amount to more than just inducements for states to provide services that they otherwise
might not be disposed to offer or could not afford. Rather, they give the national govern-
ment opportunities to define these “state” programs with great specificity. The federal
Race to the Top grants have generated enormous controversy by pushing states to adopt a
national set of Common Core standards in education. (Refer to the Logic of Politics box,
“States’ Rights Meet Reading, Writing, and ’Rithmetic,” on page 121.)

The exact structure of a grant can have an enormous impact on how much control
the federal government exercises over the scope of state programs and even over the

120 Part I: The Nationalization of Politics

ideological direction in which policy is likely to move. Though it may seem like a bureau-
cratic detail, the difference between a block grant and a matching grant is crucial. When
the federal government makes a block grant, it gives each state or local government an
exact amount of money to spend for some purpose. If the state wants to do more in the
policy area, it can, but the state’s government must pay all the costs of this program expan-
sion by itself. If state officials do not place a high priority on the policy area, they are free
to spend less than the block grant, but all of the savings will stay in the federal treasury.
States thus have little incentive to control their costs below the level of the block grant, and
a huge disincentive to spend above it. They generally spend exactly as much as the block
grant gives them, which effectively lets the federal government set state spending levels.

The logic and consequences of a matching grant work differently. With a matching
grant, the federal government promises to provide matching funds, usually between $1
and $4, for every dollar that a state spends in some area. These blank checks, not surpris-
ingly, often lead to major program expansions. A matching grant creates a “moral hazard,”
a situation in which people or groups behave differently, and often take more risks, when
they do not have to pay all the costs of their actions.

Consider the logic of Medicaid, the state health insurance program funded through
federal matching grants. States are required to cover some of their poorest residents and
provide a minimum number of health care services through Medicaid but can choose to
insure more people or pay for more services if they want. When a state’s budget is flush
and its leaders decide to expand Medicaid, a state that receives a $2-to-$1 federal match
can cover an extra $300 million of services and spend only $100 million, because the
federal government will pay the other $200 million. Its residents receive a lot of benefit,
and its taxpayers assume little financial risk. This makes Medicaid expansion a relatively
easy decision for state lawmakers. But when the state faces a budget crunch, the matching
rate makes Medicaid cuts a bad deal. To save $100 million in state spending, state offi-
cials would have to trim Medicaid services by $300 million, leaving $200 million of federal
grants on the table. This ensures a lot of pain for little gain and explains why state and fed-
eral Medicaid spending has grown steeply over the past few decades. When states are not
forced to pay the full costs of a new program, they take advantage of their blank checks to
spend more and more federal money.

Why would the federal government ever give states matching grants? National law-
makers have long realized the implications of this moral hazard for the growth of gov-
ernment. One explicit rationale behind matching grants is that they can help capture
the positive externality created when states care for the welfare and health care of their
residents. Because Americans often move across state lines, these benefits—by ensuring
that even those below the poverty line receive medical services and basic necessities—
spill across the nation, and the grants help state lawmakers internalize the benefits they
create for their neighbors. According to Wallace Oates, a prominent theorist of fiscal
federalism, matching grants should “be employed where the provision of local services
generates benefits for residents of other jurisdictions.”25 Matching grants, because they

121Chapter 3: Federalism


States’ Rights Meet Reading,
Writing, and ’Rithmetic
The Battle over the Common Core
The language used by governors leading the
fight against the imposition of a national set
of educational testing standards known as
the Common Core evokes every states’ rights
battle fought over the past two centuries. Texas
governor Rick Perry declared that “Texas is
on the right path toward improved education,
and we would be foolish and irresponsible
to place our children’s future in the hands of
unelected bureaucrats and special interest
groups thousands of miles away in Washington.”
Indiana’s Mike Pence, pledging that his state
would adopt its own demanding standards,
vowed that “they will be written by Hoosiers,
for Hoosiers, and will be among the best in the
nation.” When Louisiana governor Bobby Jindal
filed a lawsuit against the Obama administration
in August 2014, he charged that “the federal
government has hijacked and destroyed the
Common Core initiative. Common Core is the
latest effort by big government disciples to strip
away state rights and put Washington, D.C. in
control of everything.”

Where did this federal power grab come from, and
how did it generate so much political heat? The
Common Core, the target of so much incendiary
rhetoric by governors in the lead-up to the 2014
elections, was initiated by governors themselves
five years earlier. The National Governors
Association, working with a council of school
superintendents, funded the development of a
set of rigorous national standards in education to
give clear guidance to teachers across the nation
in what colleges and employers expected from

high school graduates. In a 2009 press release
announcing the state collaboration creating these
standards, Virginia governor Tim Kaine made the
case that national standards were in each state’s
best interests. “Today, we live in a world without
borders,” Governor Kaine observed. “It not only
matters how Virginia students compare to those
in surrounding states—it matters how we compete
with countries across the world.”

Then the federal government got involved.
Barack Obama’s Department of Education used
the federal government’s ability to compel the
states to action by dangling the carrot of a grant.
The Obama administration offered $4.35 billion
in “Race to the Top” education grants to states,
giving bonus points to state applications that
adopted common learning goals. State officials
understood what they needed to do to get a shot
at the federal largesse, and by 2012, forty-six
states and the District of Columbia had adopted
the Common Core.

© Daily News, L.P. (New York). Used with permission.


122 Part I: The Nationalization of Politics

Yet as the standards, which emphasized critical
thinking, explaining answers, nonfiction reading,
and computerized testing, began to roll out in
schools across the country, rebellion against
them brewed on both sides of the political
spectrum. Those on the left saw them as too
focused on testing and not enough on teaching,
with New York’s governor, Andrew Cuomo,
calling for a delay in their implementation.
Objections on the right were far more vociferous,
especially among lawmakers associated with
the Tea Party who saw this, in the words of
Governor Jindal’s lawsuit, as a policy shift that

“effectively forces states down a path toward a
national curriculum” in violation of the state
sovereignty clause in the Constitution. In 2014
legislators across the country introduced more
than one hundred bills seeking to stop or to
delay the Common Core in their states. Backers
of the Common Core have responded that the

fight is all about election-year politics. Former
U.S. education secretary Arne Duncan noted
that Jindal—a candidate for president in 2016—
initially supported the Common Core, and
attacked Jindal for switching positions: “It’s all
about politics, it’s not about education.” Yet this
fight, which is likely to play out over many years
as states implement the new standards or adopt
their own, is but another example of the age-old
push and pull between national policy and states’

Sources: Allie Bidwell, “The Politics of Common
Core,” U.S. News and World Report, March 6, 2014;
National Governors Association, “Forty-Nine States and
Territories Join Common Core Standards Initiative,” press
release, June 1, 2009; Stephanie Banchero, “School-
Standards Pushback,” Wall Street Journal, May 8, 2012;
“Gov. Bobby Jindal to Sue Feds over Common Core,”
Associated Press, August 27, 2014.


can treat each state differently, ironically allow the federal government to equalize living
conditions across states with radically unequal economies. Richer states receive smaller
federal matches, and poorer states get larger matching grants, as Table 3.2 illustrates. The
differences in these rates translate into billions more in federal dollars going to less afflu-
ent states.

Because matching rates incentivize higher state spending and redistribute money
across the nation, they have become an issue of partisan contention. The Democratically
controlled Congresses that created and expanded Medicaid and welfare programs funded
them through matching grants because they knew this financial arrangement would spur
even the most conservative and cash-strapped states to spend freely on social services.
When Republicans took control of Congress in 1994, they wanted to remove this moral
hazard to restrain state and federal spending. After trying and failing to shift Medicaid
to a block grant program in 1995, the Newt Gingrich–led Congress succeeded in block
granting the Temporary Assistance for Needy Families program as part of a 1996 wel-
fare reform deal with Bill Clinton. The ideological stakes of these battles over funding
formulas were clear; both sides knew that government would grow more quickly under
matching grants than under block grants. The combatants also likely realized that shift-
ing responsibility for funding a program from the national to the state governments dra-
matically changes who pays for it. These episodes illustrate once again that in fights over

123Chapter 3: Federalism

federalism, each combatant is usually more
concerned with a policy goal than with shap-
ing the proper relationship between national
and state governments.

The Stick: Unfunded Mandates
Until the 1960s the only federal regulations
applied to the states were those governing the
routine reporting and accounting for grants.*
Since then, Washington has relied increasingly
on rules to pursue policy objectives. Not only
are states required to administer policies they
might object to, but, adding insult to injury,
the federal government may not even compen-
sate the states for the costs of administration.
One of the most controversial examples is the
Education for All Handicapped Children Act of
1975, which requires states and school districts
to offer prescribed, and in many cases costly,
levels of special education for children with
disabilities without providing more than a fraction of the funds needed to finance these
mandated programs. Many school districts, as a consequence, find themselves strapped for
resources and must curtail existing instructional programs to satisfy this federal mandate.

Crosscutting requirements are statutes that apply certain rules and guidelines to a broad
array of federally subsidized state programs. Since the 1960s this device has been used
widely to enforce civil rights laws. For example, the failure of any state to follow federal
guidelines that prohibit discriminatory employment practices can result in prosecution
of state officials as well as loss of grants. Another prominent area of crosscutting require-
ments is the environment. All state programs that include major construction and changes
in land use must file environmental impact statements with the federal government.

Crossover sanctions are stipulations that a state, to remain eligible for full federal
funding for one program, must adhere to the guidelines of an unrelated program. One
example, mentioned earlier, is Congress’s stipulation tying federal highway funds to
state adoption of a minimum drinking age of twenty-one. Similarly, the Education
for All Handicapped Children Act requires that a school district develop special edu-
cation programs meeting federal guidelines to remain eligible for a broad variety of
previously created grants-in-aid programs, including school construction and teacher-
training subsidies.

TABLE 3.2 How Many Federal Dollars Match
One Dollar of State Spending?


Arkansas $2.39

California $1.00

Kansas $1.33

Mississippi $3.24

Montana $1.90

New York $1.00

New Mexico $2.60

Texas $1.39

Source: These matching rates are from the 2019 fiscal year, reported in
reports by the Kaiser Family Foundation (“Federal Medical Assistance
Percentage [FMAP] for Medicaid and Multiplier”).

*The one exception was the Hatch Act (1940), which sought to clean up corruption by preventing federal and
state employees from engaging in a variety of partisan political activities.

124 Part I: The Nationalization of Politics

National politicians frequently use crossover sanctions to influence state policies
beyond their jurisdiction. In 1994 Senator Patrick Leahy, D-Vt., proposed legislation
banning the sale of soft drinks on public school campuses, and Senator Dianne Feinstein,
D-Calif., introduced a bill requiring that all students caught entering school with a hand-
gun be suspended for a minimum of one year. Both bills provided for a cutoff in school aid
funds if the districts failed to comply.

Direct orders are requirements that can be enforced by legal and civil penalties. The
Clean Water Act, for example, bans ocean dumping of sewage sludge. In 1996, when the
city of San Diego resisted a multibillion-dollar investment in a sophisticated sewage treat-
ment facility that would alleviate the problem, the EPA brought suit in federal court to
impose punitive financial penalties on the city.

Certain federal laws allow the states to administer joint federal-state programs as long
as they conform to federal guidelines—a practice known as partial preemption. If a state
agency fails to follow the instructions of federal agencies, the state might lose control of

In a dizzying twist on the fiscal tools of federalism, the federal government has actually unfunded itself in order
to protect states that have legalized medical marijuana. An amendment passed by Congress in 2014 by Dana
Rohrabacher (a conservative Republican) and Sam Farr (a liberal Democrat), and renewed each year since
then, prevents the U.S. Department of Justice from spending money to obstruct states “from implementing
their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
When two California pot growers were caught with three hundred marijuana plants, $225,000 in cash, and
bars of gold and silver, the amendment saved them. Even though they pleaded guilty to federal drug charges,
charges against the growers were thrown out when a federal district judge ruled that federal laws could not be
used to crack down on medical marijuana in a state, like California, that had legalized it.
David Paul Morris/Bloomberg via Getty Images

125Chapter 3: Federalism

the program altogether; alternatively, federal grants might be suspended via crossover
regulations. Good examples of partial preemption regulations are state air pollution poli-
cies. Public law and the EPA set minimally acceptable standards, but enforcement of these
standards rests mostly with state agencies.

Hardly any area of state policy is unaffected by federal regulations of one kind or
another. A close look at the major federal laws listed in Table 3.3 reveals several inter-
esting trends and characteristics. First, although federal grants were plentiful before the
1970s, few regulatory policies were in place. Second, since the 1970s the more coercive
forms of regulation—direct orders and partial preemption—have been favored. Finally,
the content of the policies reveals the political processes that produced them. Federal
regulation of the states is concentrated on civil rights and the environment—the two sec-
tors in which national majorities are likely to be at odds with state majorities. The same
policy disagreements also may explain why coercion is such a favored policy instrument
today. Regulatory statutes compel states to administer policies they would spurn if federal
regulations did not legally require their compliance.

TABLE 3.3 Examples of Major Unfunded Mandates


Civil Rights Act of 1964 (Title VI)

Prevents discrimination on the basis of race, color, or national origin in federally
assisted programs


Age Discrimination in Employment Act (1967)

Prevents discrimination on the basis of age in federally assisted programs


Clean Air Act (1970)

Established national air quality and emissions standards

Crosscutting, crossover
sanctions, partial preemption

Occupational Safety and Health Act (1970)

Sets standards for safe and healthful working conditions

Partial preemption

Endangered Species Act (1973)

Protects and conserves endangered and threatened animal and plant species

Crosscutting, partial

Fair Labor Standards Act Amendments (1974)

Extend federal minimum wage and overtime pay protections to state and local
government employees

Direct order

Education for All Handicapped Children Act (1975)

Provides free, appropriate public education to all handicapped children
Crossover sanctions


126 Part I: The Nationalization of Politics


Hazardous and Solid Waste Amendments (1984)

Reauthorize and strengthen the scope and enforcement of the Resource
Conservation and Recovery Act of 1976; establish a program to regulate
underground storage tanks for petroleum and hazardous substances; require
annual EPA inspections of state and locally operated hazardous waste sites

Partial preemption

Asbestos Hazard Emergency Response Act (1986)

Directs school districts to inspect for asbestos hazards and take the necessary
actions to protect health and the environment; requires state review and
approval of local management response plans

Direct order

Americans with Disabilities Act (1990)

Established comprehensive national standards to prohibit discrimination in
public services and accommodations and to promote handicapped access to
public buildings and transportation

Crosscutting, direct order

Clean Air Act Amendments (1990)

Impose strict new deadlines and requirements dealing with urban smog, municipal
incinerators, and toxic emissions; enacted a program for controlling acid rain

Partial preemption

National Voter Registration Act (1993)

Requires states to provide all eligible citizens the chance to register to vote when
they apply for renewal of their driver’s license

Direct order

Ban on Internet sales tax (rider on 1998 appropriations law)

Placed a three-year moratorium on state sales taxes on Internet commerce and
created a commission of state and industry representatives to recommend
permanent policy

Direct order

No Child Left Behind Act (2001)

Established standards for performance of schools with frequent standardized
testing required and prescribed levels of credentialed instructors

Crossover sanction

Help America Vote Act (2003)

Established standards and partially financed changes in voting procedures
Direct order

Fair Minimum Wage Act (2007)

Increased the federal minimum wage from $5.15 to $7.25 per hour by 2009
Direct order

Internet Tax Freedom Act Amendments (2007)

Extended the moratorium on states charging sales tax on Internet purchases
until 2014

Direct order

Sources: Data from Advisory Commission on Intergovernmental Relations and various issues of Congressional Quarterly Weekly Report and
CQ Weekly.

TABLE 3.3 (Continued)

127Chapter 3: Federalism

When members of Congress pass a law that obligates the states to provide particular
services, they are yielding to a temptation all politicians share: the desire to respond to
some citizens’ demands without being held responsible for the costs. In forcing the states
to pay for a program, members are imposing costs for which they will not be held account-
able. Like the grants process, mandates deprive state political representatives of their
rightful decision-making authority. Of greater concern to fiscal conservatives, unfunded
mandates increase government spending. In 1995 President Clinton and the Republican
Congress agreed to rein in future temptations to “spend” the states’ revenues. The result
was the Unfunded Mandates Reform Act, which required that new federal laws pay for
the programs and regulations they imposed on the states. A 1998 study, however, found
that the law was exerting minimal constraint on mandates.26 Perhaps the temptation to
respond to demands for services while avoiding costs overwhelms the ideologies of even
conservative politicians. In any event, Congress has continued to enact preemptive and
mandate legislation.

Evolving Federalism: A By-product of National Policy
No feature of American government was more dramatically transformed during the
twentieth century than federal-state relations. Some of the most important contributions
to this development came through sudden bursts of national policymaking in which
the federal government assumed jurisdiction over and responsibility for large sectors of
public policy once reserved to the states. President Roosevelt’s New Deal response to the
Depression and President Johnson’s Great Society initiatives against poverty in the United
States are two notable examples. It is instructive that both occurred when the Democratic
Party controlled the White House and enjoyed the largest majorities in Congress ever
seen in the twentieth century. In other instances, changes in federal-state relations have
occurred more gradually and inconspicuously as interest groups and constituencies have
pressed for national action after failing to win in the states. On still other occasions, the
states themselves have invited federal participation to tap federal funding or to institute
federal oversight and sanctioning authority to solve their own collective action problems.

The nationalization of public policy that proceeded from these causes did not arise
from some grand design. Rather, it occurred as politicians sought solutions to problems
and responded to the demands of their constituencies. No one had a stake in trying to
rationalize intergovernmental relations or wrest authority away from the states. In this
sense, then, the condition of modern federalism has had little to do with responses to col-
lective action dilemmas and much to do with the interplay of political interests. And if the
behavior of recent presidents and Congresses is any indication, federal-state relations will
continue to evolve in this way.

In Chapter 4 we turn to a series of national decisions that even more dramati-
cally refashioned federalism in the United States. The issue is civil rights for African
Americans. The Civil War, Reconstruction, and the civil rights movement of the 1960s
all required vigorous national action against entrenched state policies instituting slavery

128 Part I: The Nationalization of Politics

and, later, segregation. Southerners, recognizing that their positions on slavery and seg-
regation were untenable, nevertheless sought to rationalize and defend their policies from
the higher ground of federalism. The Confederacy’s only president, Jefferson Davis, went
to his grave steadfastly maintaining that the South’s secession was not about slavery but
about states’ rights. Nearly a century later, Alabama governor George Wallace used the
same rhetoric when confronted by federal officers seeking to enforce national laws and
court orders. Because of the South’s experience with civil rights, federalism came to be
viewed as a hollow ruse that could be brushed aside without serious consideration when-
ever national action appeared necessary. Whether hollow or not, the concept of federalism
will always be debated in American politics because the stakes of this fight are so high for
policies critical to American life. “From the start,” one scholar of the history of American
federalism notes, “political opponents have fought about federalism because it affects who
wins and who loses a particular fight.”27


block grant 120
Common Core 105
cutthroat competition 111
dual federalism 95
elastic clause 100
enumerated powers 100

externality 109
federalism 93
grants-in-aid 119
matching grant 120
nationalization 96
preemption legislation 118

race to the bottom 111
shared federalism 96
Tenth Amendment 101
unitary government 93


Beer, Samuel H. To Make a Nation: The Redis­
covery of American Federalism. Cambridge, MA:
Belknap Press of Harvard University Press, 1993.
Beer reviews the history of American federalism,
its roots in traditional republican theory, and its
modern evolution.

Berry, Christopher R. Imperfect Union: Represen­
tation and Taxation in Multilevel Governments.
New York: Cambridge University Press, 2009. Berry
looks at politics, public participation, and policy

in the tens of thousands of special-purpose local
governments and school districts that deliver crit-
ical services yet form nearly invisible layers of
government within America.

Campbell, Ballard C. The Growth of American
Government: Governance from the Cleveland Era to
the Present. Bloomington: Indiana University Press,
1995. Another historical survey of nationalization
that focuses almost exclusively on the national

129Chapter 3: Federalism

Kettl, Donald H. System under Stress: Homeland
Security and American Politics, 2nd ed. Washington,
DC: CQ Press, 2007. This balanced look at
federal, state, and local responses to the September
11, 2001, attacks examines the system-wide
failures that led to the disaster—such as poor
coordination among the nation’s intelligence
agencies—and assesses the consequences for the

Lowry, William R. The Dimensions of Federalism:
State Governments and Pollution Control Policies.
Durham, NC: Duke University Press, 1992. A study
of shared federalism in water pollution policy that
finds a stronger state presence than is commonly

Peterson, Paul E., Barry G. Rabe, and Kenneth K.
Wong. When Federalism Works. Washington, DC:
Brookings, 1986. A thorough and authoritative
study of modern federalism in the United States.

Skowronek, Stephen. Building a New American
State: The Expansion of National Administrative
Capacities, 1877–1920. New York: Cambridge
University Press, 1982. A modern classic on the
institutional conflicts involved in shifting the center
of public policy from the states to Washington.

Wiebe, Robert H. The Search for Order, 1877–1920.
New York: Hill & Wang, 1967. An authoritative,
well-written historical survey of the nationalization
of American life.


1. What are the main differences between unitary
governments, confederations, and federal gov-
ernments? Which type of government is most

2. Most of the Framers felt that the Constitution
adequately protected the states against encroach-
ment by the national government. How, then, did
proponents of nationalization succeed in expand-
ing the power of the national government?

3. When states encounter problems that cross
state borders, why don’t they just make formal

agreements with each other to solve the prob-
lems? What happens in the absence of such

4. Why would national majorities sometimes find
it easier to work through the national govern-
ment than through state governments? What
are some examples of policy areas in which this
strategy has been used?

5. What are the three main types of collective
action problems faced by state governments?
Give an example of each.

A protester holds a sign in support of Black Lives Matter during a march in Chicago on June 14, 2020. Protests erupted across the
nation after George Floyd died in police custody in Minneapolis, Minnesota, on May 25.
Natasha Moustache/Getty Images


Civil Rights4

• How could a nation that embraced the Declaration of
Independence’s creed that “all men are created equal”
condone slavery?

• Why would a majority in society ever seek to extend and
protect the rights of its minorities in the face of huge costs—
even those imposed by a tragic civil war?

• Does America’s constitutional system impede or promote the
cause of civil rights?

• Are “civil rights” generic, or do we define them differently
across groups according to issues for which they seek


4.1 Define civil rights.

4.2 Identify two obstacles in the
way of civil rights for African
Americans historically.

4.3 Discuss the political efforts
to seek civil rights for African
Americans from the nineteenth
century to the present.

4.4 Explain the legacy of the civil
rights movement for groups
such as women, Hispanics,
and members of the LGBTQ+

4.5 Assess the role of collective
action efforts in the civil rights

Within moments of his death on May 25, 2020, nine-minute
videos of George Floyd pleading for his life went viral. Across
the COVID-closeted nation, and soon after around the world,
the American public watched, riveted by the horrifying scene of
this cuffed Black man lying facedown on the pavement begging
for mercy with a white policeman nonchalantly pressing his
knee against his neck. After five minutes or so of repeatedly,
desperately pleading “I can’t breathe,” Floyd became silent.
Spectators yelled at the police to stop choking him, but the
police officer kept up the pressure for another several minutes
until paramedics arrived and found him dead.

Protests erupted immediately across the nation with “I can’t
breathe” as their anthem. Despite the dark days of the pandemic,
one news source counted 650 demonstrations surfacing around
the country within the next two days. Demonstrations were still
going strong a week later. On June 6 alone 550 communities
found people marching in the streets chanting “Black Lives
Matter” and “Defund the Police.” As the cumulative number
of demonstrations crossed five thousand, experts in mass
behavior declared them to add up to the largest, most extensive

132 Part I: The Nationalization of Politics

demonstrations in American history. From respondents’ reports, national public
opinion surveys suggested that between 15 and 26 million Americans had taken to the
street during the previous week. (By comparison, the well-organized women’s march in
2017 was deemed a success when it attracted from 3 to 5 million participants nationally.)*

The Black Lives Matter (BLM) movement had been conducting demonstrations since
2013 in response to a series of video-documented police and white vigilante-style
shootings of Black Americans. And over this time, public opinion beyond the Black
community had steadily shifted to greater recognition of racial bias in policing. In all
likelihood, the outpouring in response to Floyd’s death culminated the public’s growing
frustration from repeatedly witnessing video-documented failures of law enforcement
to equitably perform its mission. Whether the incident involved a shooting at a traffic
stop in Minneapolis as a Black driver reached for his license; a chokehold death in
New York City of a Black male being arrested for illegally selling cigarettes; a sheriff’s
shooting of an unarmed Black man outside a convenience store in Baton Rouge,
Louisiana; or any of the other recent video-recorded killings in Ferguson, Missouri,
Brunswick, Georgia, or Louisville, Kentucky, taken together, they confronted whites with
an irrefutable record of heavy-handed, routine police treatment of African Americans.

The massive protest turnout indicates two other features of the demonstrations that
surprised organizers and onlookers alike. Unlike the civil rights demonstrations of
the 1960s (which we review later in the chapter), most of those marching in BLM
demonstrations were not Black. Counts from interviews and analysis of photos estimate
between half and two-thirds of demonstrators were white, and about a fifth were either
Asian or Hispanic. Only about 15 percent of participants by these counts were Black. Yet
twice as many Black as white respondents to public opinion surveys (10 to
5 percent, respectively; shown in Table 4.1) reported participating in or closely following
the demonstrations. Their numbers were simply swamped by the historic scale of
participation in the protests.

It also reflects the geographical breadth of the protests. In San Diego County, where African
Americans comprise less than 6 percent of the population, marches in multiple locations
continued almost daily for weeks after Floyd’s death. Portland, another predominantly white
city, sustained daily and highly contentious protests long after they had subsided in other
communities. All around the country, citizens in small towns and suburban communities
that had rarely experienced protests found that by enlisting social media, they could quickly
generate a crowd ready to march, plant yard signs, and honk in support of BLM.†

*Dana R. Fisher, “The Diversity of the recent Black Lives Matter Protests Is a Good Sign for Racial Equity,”
Brookings. July 8, 2020.
†Many of these small-town demonstrations attracted national attention. After all, when had anyone heard of
whites staging protests against racism in Petal, Mississippi; Shawnee, Kansas; Frisco, Texas; or Paducah, Kentucky?

133Chapter 4: Civil Rights

Within a week of Floyd’s death,
national opinion pollers went into
the field to check reactions to the
revelations about police practices
and the protests that followed. They
found dramatic changes in public
opinion, especially among whites.
What Blacks had long known a
large share of the white public now
acknowledged. San Antonio Spurs
coach Gregg Popovich was not
alone in his comment that he was
“embarrassed as a white person.” It
was a sentiment shared and discussed
by a large number of whites and other
minorities throughout the country.
The results in Table 4.1 from a large,
national survey taken several weeks
after Floyd’s death are typical. When asked if they support the Black Lives Matter
movement in the summer of 2017, 52 percent of whites and 46 percent of Hispanic
Americans expressed support (Asians’ opinions were not reported in the earlier

Both of South Carolina’s U.S. senators are Republicans who have had very
different experiences with police. Tim Scott, who is Black, stated in a speech
on the floor of the Senate that he had been stopped a half dozen times by the
Capitol Police despite being a senator. Lindsey Graham, who is white, noted that
he had never been stopped.
Richard Ellis / Alamy Stock Photo

TABLE 4.1 Majorities across Race and Ethnicity Support Black Lives Matter








All Adults 38 29 69 6

White 31 30 70 5

Black 71 15 75 10

Hispanic 42 35 61 9

Asian* 39 36 64 10

Rep/lean Rep 10 30 63 2

Dem/lean Dem 62 28 75 10

*Asian adults were interviewed in English only.

Source: Pew Research Center Survey, June 4–10, 2020

134 Part I: The Nationalization of Politics

survey). The increased share of whites endorsing BLM in Table 4.1 is unsurprising,
given recent events. More surprising is the response of Hispanic Americans, whose
BLM support grew from 46 to 77 percent. Perhaps recent events had heightened this
group’s own concerns about maltreatment from law enforcement.

Whether the demonstrations will continue and ultimately culminate in new national
policy on policing and civil rights remains to be seen. Many local communities began
various reforms, such as strengthening civilian oversight, reordering the mission
and budgets of police, and banning the chokehold. State legislatures returned to fall
session facing a long list of reform proposals ranging from ending policy immunity for
racist practices to greater limitations on attorney challenges in the selection of jurors.
With the political parties polarized as they entered the presidential election cycle and
each controlling a veto over legislation—Democrats in the House of Representatives;
Republicans in the Senate and White House—the prospects for quick agreement in
Washington were slim and awaited the next election.

Yet by summer’s end the movement had accomplished something necessary—support
from the broader community. In this chapter we find the abolitionists acknowledging
this prerequisite in joining the Free Soil coalition in the 1856 presidential election and
the new Republican coalition in 1860. So too had Martin Luther King Jr. and other
civil rights leaders in the 1960s when they staged demonstrations in Birmingham
and Selma, Alabama, and in expectation that the national, largely white prime-time
television audience would be shocked to the point of demanding action by the violence
that undergirded segregation.

What Are Civil Rights?
For many years, the term civil rights referred almost exclusively to the rights and privi-
leges of African Americans. Certainly, the status and treatment of African Americans—
first emancipation from slavery and then, in the twentieth century, from segregation. The
legacy concerns the rights of everyone. The new federal laws, administrative practices,
and agencies to secure the rights of African Americans became available to enforce the
rights of “new” claimants. Voting rights laws authorizing Justice Department intervention
against discriminatory practices in the 1960s were summoned by Hispanic voters fearing
arbitrary rules, such as challenges of citizenship, that would disenfranchise them in the
2004 presidential election. The civil rights struggle of African Americans ends with all
Americans changing their view of their own rights and privileges. Perhaps it is this recog-
nition that prompted large shares of the Asian and Hispanic communities to demonstrate
and talk with friends and family about Blacks’ civil rights.

Throughout the nation’s history, Americans have applied the terms civil rights and
civil liberties to a variety of rights and privileges. Although they have sometimes been
used interchangeably, rights and liberties do offer useful distinctions for organizing our

135Chapter 4: Civil Rights

discussion in this and the next chapter. We classify as civil liberties the Constitution’s
protections from government power, meaning the government may not take these
freedoms—including the freedoms of speech, liberty, and the right to privacy—away.
Typically, violations of these liberties occur when some government agency, at any
level, oversteps its authority. Civil rights, on the other hand, represent those protections
by government or that government secures on behalf of its citizens. The crucial differ-
ence is that civil rights require governments to act, whereas civil liberties are well served
when government does nothing.1 In colonial times civil rights equaled “civic” rights—
protections against arbitrary action by the distant British Crown. Although the term
civil rights was not commonly used until the late 1760s, when colonial Americans rallied
to the slogan “No taxation without representation,” the colonists were clearly seeking
these rights, including the right to vote and have their views represented in the British
Parliament. Thomas Jefferson’s eloquent statement in the Declaration of Independence
that all governments must defer to humanity’s “unalienable Rights” of “Life, Liberty and
the pursuit of Happiness” gave the Revolutionary War its moral certitude.

Modern-day “civil rights” encompass much more than “civic” rights of political
expression and participation. They also include safeguards against any effort by govern-
ment and dominant groups in a community to subjugate another group and take unfair,
mostly economic, advantage of it. Before the American Civil War, southern governments
teamed up with white slave owners to configure state laws and institutions to legalize and
preserve slavery. (In most southern states, for example, it was illegal for enslaved people
to be freed by their masters.) Many decades later, segregation in the South, also regulated
by the states, dominated virtually all interpersonal contact between the races. Civil rights,
then, also include the rights of individuals in their relations with one another: to live free
from bondage and intimidation, to enter into contracts and own property, to have access
to businesses that serve the public, and to enjoy equal educational opportunities.

The Civil Rights of African Americans
In December 1997 Bill Lann Lee, a second-generation Chinese American, opened his
acceptance statement as President Bill Clinton’s acting assistant attorney general for civil
rights by describing his post as “haunted by the ghosts of slavery, the Civil War, Jim Crow.”
He then proceeded to cite modern instances of racial, ethnic, and religious discrimina-
tion.2 Indeed, as Lee knew and the history books describe, African Americans have been
engaged in a two-hundred-year struggle for civil rights, spanning slavery to full citizen-
ship. As we will see in this chapter and the next, the results have redefined the rights and
liberties of all Americans.

The history of Black civil rights provided a laboratory to test James Madison’s ideas
on democracy in America, laid out in his Federalist essays. Dominant white majorities
throughout the South instituted slavery—and later segregation—to gain a permanent
advantage over the Black minority. And what is the solution to such tyranny? As Madison
argued in Federalist No. 10, a diverse national community would be less inclined than
state-level majorities to engage in tyranny and more likely to halt it.

136 Part I: The Nationalization of Politics

The history of Black civil rights follows Madison’s script in another respect. The
effort to secure civil rights rested less on making formal rules—which Madison noted
had little impact on intemperate majorities—and more on configuring politics to
allow society’s competing interests to check one another. This chapter, as did Madison,
recognizes civil rights in America as products of the political process. But the abuses
of slavery and segregation endured for almost two centuries before the national
majority struck out against local tyranny. The effect of institutions on democracy explains
this disturbing situation. For one thing, the Framers rejected a national veto over all state
laws, as Madison had repeatedly proposed. Public policy, such as public safety and regula-
tion of elections, was left to state control, allowing slavery to flourish within the South.

African Americans faced two major obstacles in securing rights. First, the
Constitution reserves important authority for the states, such as the power to determine
voting eligibility. It also separates powers among the three branches of government,
making it difficult for national majorities to control the federal government to the extent
required to strike against tyranny in the states.

Madison’s observation that government is controlled by “men” and not “angels” sums
up the second obstacle to obtaining civil rights for African Americans. People do not
engage in costly behavior without some expected return. Madison, recognizing that citi-
zens and politicians alike act most forcefully when they have a personal stake in the out-
come, believed that tyranny could best be avoided by empowering every faction to look out
for its own interests. But what of a faction without the capacity to defend itself? This predic-
ament is central to the nation’s long ordeal over civil rights for African Americans. Indeed,
politics based on self-interest in a fragmented constitutional system largely explains why
it took so long to eradicate slavery, segregation, and other discrimination. Instead, the real
question is how the civil rights of African Americans ever came to be addressed at all.

The Politics of Black Civil Rights
The efforts to seek civil rights for African Americans took different forms at different
times. Notably, in 1787 Benjamin Franklin convened an abolition society meeting in his
home and invited delegates to the Constitutional Convention to attend. Throughout the
antebellum era and during the Civil War, a small but persistent abolitionist movement
forced the nation to face the discrepancy between the ideal of “Life, Liberty and the pur-
suit of Happiness” and the enslavement of 10 percent of its population. Emancipation
shifted the issue from fundamental “life and liberty” rights to those of full citizenship.*

*As late as 1858 Abraham Lincoln, in his famous Senate race debates in Illinois with Stephen Douglas, distinguished
between citizenship rights based on equality and fundamental rights. He protected his flank by stating there was “no
purpose to introduce political and social equality between the white and black races.” But then, in one of the most
progressive statements made by any elected officeholder of the time, he asserted, “There is no reason in the world
why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence. . . . I hold that
he is as much entitled to these as the white man.” Donald G. Nieman, Promises to Keep: African-Americans and the
Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991), 43.

137Chapter 4: Civil Rights

Several years later the Fifteenth Amendment granted recently freed, no-longer-three-
fifths citizens the right to vote,* but another century would pass before most could safely
exercise this right. With civic rights secured, the dominant issue again shifted, this time
to equal opportunity in the marketplace—particularly in education, employment, and

By and large, national majorities have over the decades consistently favored civil rights
for African Americans, but only twice did they strike out forcefully against discrimina-
tion. The first time was Reconstruction after the Civil War; the second was the national
attack on segregation in the 1960s. Why were rights advanced at these particular moments
in American history and not at others? A look at the successes and failures will answer this
question and illuminate the conditions under which national majorities are able to dictate
national policy.

The Height of Slavery: 1808–1865
Late in 1807, with the Constitution’s prohibition against the federal government’s regu-
lation of the slave trade about to expire, Congress passed a law ending the importation
of enslaved people. Southern representatives in Congress, not yet aware that the rise of
“King Cotton” would soon give rise to a plantation economy centered on enslaved peo-
ple, did not vigorously contest the new law. In fact, some probably anticipated that the
restricted supply of new enslaved people might drive up the market value of their human
property. Thus the nation took this first step toward eradicating slavery with deceptive
ease. It would never be easy again.

Over the next decade slavery remained a side issue only because the northern and
southern states carefully maintained regional balance in the Senate, thereby preserving
the South’s veto over national policy. This balance required matching states’ entry—one
slave state with one free state—into the Union. As we learned earlier, institutions created
to achieve one goal can over time come to serve other purposes. Where equal apportion-
ment of the Senate reassured small states that their interests would not be ignored in the
new national government, by the 1820s this same rule guaranteed the South a veto over
policy curtailing slavery. Many northern politicians found the practice objectionable but
did not press for its eradication against intransigent southerners for fear of fracturing
fragile regional party alliances. Indeed, the North hoped that slavery would eventually
wither away.

The Missouri Compromise
Then in 1819 the citizens of Missouri, most of whom had emigrated from the slave states
of Kentucky and Tennessee, petitioned Congress for admission as a slave state. Instead of

*This achievement stemmed in part from the Senate’s insistence that the former Confederate states ratify the
amendment as a condition of their reentry into the Union.

138 Part I: The Nationalization of Politics

shriveling up, slavery threatened to expand beyond its southern borders, upset the bal-
ance, and ignite the nation. “Like a fire bell in the night,” wrote a retired Thomas Jefferson,
the political conflagration he foresaw “awakened and filled me with terror.”3 After months
of debate in Washington and throughout the country, Congress enacted the Missouri
Compromise in 1820. The plan matched Missouri’s entry as a slave state with Maine’s
as a free state, thereby maintaining the balance in the Senate between free and slave
states. Moreover, the South agreed to accept Missouri’s southern border as the northern
boundary beyond which slavery could not extend in the future (Map 4.1). The boundary
at latitude 36°30’ stretched to the end of the Louisiana Territory, where Spain’s possessions
began. Once again, slavery appeared to be fenced in. The compromise itself was a classic

� MAP 4.1 The Missouri Compromise and the State of the Union, 1820







as free
















Ceded to Great Britain, 1818

Ceded by Great Britain, 1818




(Held jointly by

United States and
Great Britain)


Free states and territories

Slave states and territories

Adams-Onis Treaty Line, 1819 49

36° 30’

Closed to slavery by Missouri Compromise

Open to slavery by Missouri Compromise


admitted as
slave state,




Source: Mary B. Norton et al., People and a Nation: A History of the United States, 2 vols., 5th ed. © 1998 Wadsworth, a part of Cengage Learning,
Inc. Reproduced by permission.

139Chapter 4: Civil Rights

“political” solution—one that was not entirely
satisfactory to either side but that allowed agree-
ment on a national policy applicable to the fore-
seeable future.

For the next decade or so this compromise
worked. It began to unravel, however, as territo-
ries applying for statehood were not conveniently
paired off as slave and free states. Gradually
southern senators realized that, under the cur-
rent formula, their ability to block national policy
was doomed as more free than slave states joined
the Union with continued westward expansion.
Thus they began searching for an effective alter-
native to their Senate veto that would ensure con-
tinuation of the institution of slavery.

Meanwhile, the containment strategy also
was losing favor in the North, where a small but
highly vocal group of abolitionists had never
accepted the compromise. More broadly, the
abolitionist movement, under the banner of the
Liberty Party, reminded the nation of its hypoc-
risy in condoning slavery. Voters were angry
about slavery’s territorial expansion, although
few endorsed its outright eradication.*

The Wilmot Proviso and
the Compromise of 1850
In 1846 David Wilmot, a Democratic repre-
sentative from Pennsylvania, introduced a bill
that would have gutted the compromise by ban-
ning slavery in the recently acquired territories.
Wilmot denied any “squeamish sensitivities” or
“morbid sympathy for the slave.” Rather, he professed devotion to “the rights of white free-
men . . . [and] white free labor.”4 Simply put, the labor of enslaved people depressed wages
for free, white workers. The Wilmot proviso was introduced twice and passed the House
of Representatives both times, but it made no headway in the evenly divided Senate. Still,
the failure of Wilmot’s proposal eventually led significant numbers of northern whites to
recognize they had a stake in containing slavery.

Between 1882 and 1950, 4,729 lynchings were reported in
the United States. African Americans were the victims in about
three-quarters of the cases. This 1930s NAACP poster graphically
featured this tyrannical practice designed to intimidate the entire
Black population.
Schomburg Center, NYPL/Art Resource, NY

*After its recent war with Mexico, the United States had annexed territory in the Southwest, almost all of it fall-
ing into the slavery zone. Moreover, California was petitioning for statehood, and southerners were proposing
that the 36°30’ line be projected to the Pacific Ocean and California be split into one slave and one free state.

140 Part I: The Nationalization of Politics

By 1848 Wilmot’s allies joined the abolition-
ists in the new antislavery Free Soil Party. Its elec-
tion slate that year was headed by presidential
candidate Martin Van Buren, who already had
served one term as president, as a Democrat, in
1836. His 1848 campaign revolved around a sin-
gle issue: opposition to the extension of slavery
on behalf of “free labor.” The Free Soil Party man-
aged to scare the two major political parties, the
Democrats and the Whigs, by winning 10 percent
of the national popular vote and finishing second
in several states. Six years later the Free Soil Party
joined a broader coalition against slavery’s exten-
sion that called itself the Republican Party.

In 1850 the Missouri Compromise buck-
led under the weight of southern and north-
ern grievances. Southerners had complained
that runaway enslaved people who reached
the North via the “Underground Railroad”—a
network of abolitionists who hid enslaved
people and provided them with transporta-
tion northward—were not being returned to
their owners. At the same time, northerners
were repulsed by slave auctions in Washington,
DC, “within the shadow of the Capitol.” But the
compromise finally collapsed when California
applied in 1849 for admission to the Union as a
free state. If the South agreed to admit California,
it would lose its ability to block legislation in
the Senate. Ultimately the South did agree, but
only in return for passage of the Fugitive Slave

Law compelling northerners to honor southerners’ property claims to enslaved people.
Moreover, the new Compromise of 1850, introduced by aging Whig senator Henry Clay
of Kentucky, allowed the residents of the territories to decide for themselves whether to
apply for statehood as a slave or free state.

Dred Scott Galvanizes the North
The South may have lost its Senate veto, but a few years later it would unexpectedly
acquire a new one. In 1857 the Supreme Court delivered one of its most unfortu-
nate decisions in Dred Scott v. Sandford.5 With every justice writing a separate opinion,
a 7–2 majority of the Court concurred that the federal government could not prevent

The Fugitive Slave Law of 1850 forced law enforcement authorities
in both the North and the South to act as slaveholders’ agents in
seizing and returning their “property.” As this broadside warned,
even free African Americans were in danger of being seized and
sent into slavery as unscrupulous law enforcement officials
colluded with slaveholders in making bogus claims that these free
citizens were actually runaways.
The Granger Collection, NYC — All rights reserved.

141Chapter 4: Civil Rights

slavery in the territories. The Herculean effort to legislate mutually acceptable policy
over the previous half century was undone in a single decision by the nine unelected jus-
tices. The mostly southern majority argued that the Constitution’s Framers had never
intended African Americans to be citizens. Consequently, African Americans enjoyed
“no rights which a white man was bound to respect,” and any federal law that interfered
with the right of an individual to his property, including human chattel, was unconstitu-
tional. Sympathetic lower-court judges appeared ready to extend the logic of this argu-
ment and rule that state laws banning slavery also were unconstitutional. The specter
of the whole nation being opened to slaveholding by judicial fiat galvanized the North.
Campaigning vigorously on the slogan “Free Soil, Free Labor, Free Men,” Republican can-
didate Abraham Lincoln won the 1860 presidential election. So too did so many fellow
Republican congressional candidates that this young party took majority control of the
House of Representatives and, in alliance with splinter parties, formed a narrow anti-
slavery majority in the Senate. For the first time in American history, the president and a
majority of both houses of Congress were aligned against slavery’s extension.

Recognizing that the seemingly insurmountable transaction costs to effective major-
ity action had finally and suddenly been swept away, the South did not wait to contest new
antislavery policy in Congress. Once president-elect Lincoln announced that the national
government would no longer tolerate “the minority [the South] over the majority,” the
southern states seceded, with South Carolina the first to proclaim its independence on
December 20, 1860. By June 1861 ten more states had left the Union and established a
new, confederation-style government. On April 12, 1861, the “Confederates” fired on Fort
Sumter, a federal garrison in Charleston harbor. The American Civil War had begun, a
war that would claim the lives of more than six hundred thousand American soldiers with
many thousands more maimed for life.

Thus the first half century of racial politics in the United States closely followed
Madison’s prediction of tyranny in the states unconstrained by national majorities. In the
South white majorities enlisted state authority to preserve slavery. They were aided and
abetted by their agents in the Senate who, as Madison had warned, succeeded in frustrat-
ing national action. Only the decisive 1860 Republican electoral victory and the secession
of the slave states from the Union gave the national majority sufficient control over gov-
ernment to enforce its preferences. Along the way, strategic politicians, including Wilmot
and Lincoln, transformed a losing issue into a winning one by focusing narrowly on the
territories and the interests of northern whites more concerned about their own welfare
than the welfare of enslaved people. In the end, this appeal enabled these politicians to win
control of the government and eventually eradicate slavery.

Reconstruction: 1865–1877
In the five-year period from 1865 to 1870, enslaved people were formally emancipated
(Thirteenth Amendment), granted citizenship (Fourteenth Amendment), and guar-
anteed the right to vote (Fifteenth Amendment). At the close of the Civil War, however,

142 Part I: The Nationalization of Politics


The Emancipation Proclamation
Emancipation of enslaved people was born
of war rather than politics, but its planning
and implementation were nonetheless highly
strategic. When read carefully, President
Abraham Lincoln’s Emancipation Proclamation,
issued in the fall of 1862, appears to have been
composed more with an eye to encouraging
southern defections from the Confederacy
than to emancipating enslaved people. Lincoln
announced that enslaved people would be freed
in those states that persisted with the rebellion.
Slavery was to remain intact in the border states
that had stayed in the Union and even in those
sections of the Confederacy that had fallen under
Union control.

This policy exposed the president to the
criticism that he had failed to free the slaves
where he could and freed them where he could
not. But by mapping emancipation this way,
he prevented it from becoming politically
divisive among the Union states (a few still
allowed slave ownership), while simultaneously
trying to drive a wedge into the Confederacy.
Moreover, the rebel states might have to deal
with slaves asserting their freedom. Not until

the 1864 presidential campaign did Lincoln
openly endorse the universal abolition of

In 1863 David Gilmour Blythe depicted a homespun
Lincoln (his rail-splitter’s maul is in the foreground) at
work in his study writing the Emancipation Proclamation.
Pushed to one side, unheeded, are the states’ rights
theories of John C. Calhoun and John Randolph. Instead,
Lincoln rests his hand on the Holy Bible and heeds
Andrew Jackson’s call: “The Union Must & Shall Be
Courtesy of the Library of Congress Prints & Photographs Division

*Of the eleven referendum votes held from 1865 through 1869 in eight northern states on constitutional
changes to provide African Americans with the ballot, only those in Iowa and Minnesota in 1868 succeeded.
The white voters of Illinois, Indiana, Pennsylvania, and New Jersey never voted on the issue, which may have
indicated a higher intensity of racial prejudice in those states than in Connecticut, New York, and Ohio, where
equal suffrage was defeated. LaWanda and John H. Cox, “Negro Suffrage and Republican Politics: The Problem
of Motivation in Reconstruction Historiography,” Journal of Southern History 33 (August 1967): 318–319.

only a handful of Union states gave Black citizens equal access to the ballot box. Some
subjected African Americans to special criteria—such as proof of property ownership
and literacy—that effectively disenfranchised most of them. Other northern states simply
barred African Americans from voting.* For most states, then, freeing Blacks from slav-
ery and granting them full-fledged citizenship were two different things, and the latter

143Chapter 4: Civil Rights

*Another enemy of slavery who conceded that freedmen could not be transformed instantly into full citizens
was Republican senator Charles Sumner of Massachusetts, who before the war had earned his abolitionist cre-
dentials the hard way by being severely caned by an enraged southern member of the House after a floor speech
denouncing slavery.
†Throughout the remainder of his presidency, the executive order remained stalled in federal courts.

was regarded as radical even by abolitionists. Militant abolitionist newspaper publisher
William Lloyd Garrison concluded that “according to the laws of development and prog-
ress,” voting “is not practical.”* So how did the Fifteenth Amendment manage to clear, with
remarkable alacrity, the formidable hurdles of the amendment process?

The ability to count is invaluable to a politician. Shortly after the war ended in 1865,
House Republican leader Thaddeus Stevens of Pennsylvania calculated the probable par-
tisan makeup of Congress after the South returned to the Union. Taking into account that
African Americans now counted as full rather than three-fifths citizens for apportioning
congressional seats across the states, Stevens estimated that the South would gain thir-
teen seats over its prewar level. Moreover, with southern legislatures busily enacting laws,
called Black codes, that effectively prevented former enslaved people from voting (and
thus from supporting the party of Lincoln), Stevens rightly suspected that all thirteen seats
would be added to the Democratic column. Southerners, he noted, “with their kindred
Copperheads [Democrats] of the North, would always elect the President [as well as] con-
trol Congress.”6 The outlook was bleak for the Republican Party. Even as Andrew Johnson
of Tennessee, Lincoln’s Democratic successor in the White House, planned for the South’s
rapid readmission to the Union, congressional Republicans were staring at possible defeat
in the next national election. The Republican response was Reconstruction, whereby
under the watchful eye of federal troops, the South would be transformed from a slave
society into a free one in which African Americans would fully enjoy the privileges of
citizenship. At least that was the plan.

The Fourteenth and Fifteenth Amendments
The Republicans’ foray into political and social reconstruction began with the Fourteenth
Amendment. It is difficult to overstate its significance for Americans a century and a half
later. It opens with a straightforward definition of citizenship that encompasses former
slaves: “All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.” Birthright
citizenship, as it is sometimes called, has become a flashpoint issue for President Trump.
In the fall of 2018 he issued an executive order trying to end it, claiming dubiously that
illegal migrants were not in states’ “jurisdictions,” which requires tortured reasoning to
reach this conclusion.† The qualifier does exclude some groups, such as the families of dip-
lomats, foreign soldiers who are in the country temporarily, and others who do clearly fall
under their home country’s jurisdiction. Then the amendment declares that no state shall
“deprive any person of life, liberty, or property, without the due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws” (emphasis added). Note

144 Part I: The Nationalization of Politics

that this statement blankets all “persons,” not just citizens with due process and equal pro-
tection. This provision is the cornerstone—as important arguably as the Bill of Rights—of
our present-day rights and liberties. We devote all of the next chapter to examining the
impact of the due process and equal protection clauses on the liberties of all Americans.

Section 2 of the Fourteenth Amendment turns to the immediate business of
Reconstruction. It reaffirms the constitutional prescription of apportioning seats in the
House of Representatives according to a state’s population but then makes an exception:
if a state fails to allow Black men to vote in federal and state elections, the number of seats
allocated to it will be reduced proportionately. A purely political calculation dictated the
provision of additional seats only where the Republican Party stood a fighting chance of
winning. The amendment was intended to protect two constituencies: African Americans
in the South and the Republican majority in Washington, DC. After the war, as before,
civil rights rode on the shoulders of partisan, self-interested politics.

But how did this skillfully crafted amendment gain the necessary support when
new legislatures in the South were rejecting it by nearly unanimous majorities? The
Republicans in Congress, enjoying veto-proof majorities and a recent landslide victory in
the 1866 midterm elections, devised an ingenious plan to foil southern opposition. The
First Reconstruction Act of 1867 disbanded the governments of the southern states (with
the exception of Tennessee, which already had been readmitted to the Union), thereby
voiding their votes against the amendment. It then replaced the state governments with
five military districts, headed by generals and administered by more than twenty thou-
sand northern troops. To ensure ratification once the state governments were reinstituted,
the law bluntly extended the vote to all freedmen and withheld it from the white, rebel
ex-soldiers. In Louisiana, where the racial composition of the adult male population was
roughly evenly split, Black voter registration soon doubled the registration of whites.*
Then, putting one last nail in the Confederacy’s coffin, Congress made readmission to the
Union contingent on a state’s ratification of the Fourteenth Amendment.

The narrow partisan purpose of Reconstruction is evident in what the Republican
policy omitted. Abolitionists and Black leaders pressed Congress for land reform and a
degree of economic independence for African Americans from their former masters.
Instead, all that the freed enslaved people got from Congress was the ballot. Republican
cabinet secretary Gideon Welles concluded cynically, “It is evident that intense partisan-
ship rather than philanthropy is the root of the movement.”7 Two years later congressional
Republicans sought to make the Black franchise inviolable by passing and sending to the
states the Fifteenth Amendment. Quickly ratified, it simply states, “The right of citizens
of the United States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.”

*Similarly, in Alabama there were approximately twenty thousand more white than Black men but forty thou-
sand more Black voters. C. Vann Woodward, The Burden of Southern History (Baton Rouge: Louisiana State
University Press, 1968), 98–99.

145Chapter 4: Civil Rights

Rights Lost: The Failure of Reconstruction
Despite these efforts, Reconstruction’s advancement of Black civil rights proved tem-
porary. Relying heavily on Black support, Republicans dominated southern state legis-
latures for a few years, but white Democrats seized control of Tennessee and Virginia
as early as 1869, and by 1877 all of the former Confederate states had reverted to white
Democratic control. Once this happened, Reconstruction was doomed, and African
Americans saw their newly acquired status as freed men and women slide back to near

Power slipped away from African Americans during these years for several reasons.
Vigilante violence as a political resource erupted in the late 1860s. Murderous white riot-
ers in New Orleans, Memphis, and other southern cities targeted politically active African
Americans and their white allies. In the countryside, the Ku Klux Klan, a secret society of
white supremacist men, perfected intimidation through selective brutality.

Meanwhile, northern politicians’ commitment to Reconstruction was waning.
After many Republicans went down to defeat in the 1874 midterm congressional elec-
tions, apparently because of an economic recession, the new Democratic majority in
the House of Representatives refused to appropriate funds to support the military forces
that remained in the South. Northern constituents wanted their sons returned home.
Congress passed additional laws to protect the freed enslaved people, but without serious
enforcement provisions, they offered African Americans in the distant South little real
support. With the rise of the Ku Klux Klan, accompanied by the rapid demobilization of
the occupying Union Army, the trajectory of southern politics became clear.

Killed by the same short-term partisan considerations that gave birth to it,
Reconstruction officially ended with the 1876 presidential election. The Democratic can-
didate, Samuel Tilden, came within one vote of an Electoral College majority, but in the
disputed states of Florida and Louisiana both parties produced their own favorable vote
counts. As a result, the election was thrown into the House of Representatives, where a
Republican pledge to end Reconstruction induced southerners to break ranks and support
the Republican candidate, Rutherford B. Hayes. In 1877 federal troops pulled out of the
South, leaving African Americans at the mercy of their former masters.8 During the early
post–Civil War years, therefore, the Constitution presented fewer barriers to majority rule
than in any other period in American history. The Republican majority in Congress and
the White House opted for a middle course of political reform. Rather than undertaking a
massive social and economic reconstruction of the South, they limited Reconstruction to
making the South Republican, thereby realizing the party’s goal of remaining the nation’s
majority party and satisfying the interests of their constituents. Even so, local interests in
northern congressional districts soon rose against this limited reconstruction. Twenty
thousand war-weary northern soldiers remained in the South, and the government con-
tinued to assess high wartime taxes nationwide to achieve in the South what few white
citizens anywhere would have tolerated in their own communities—the creation of a
sizable Black electorate. In the North voters no longer wanted to sacrifice to solve distant

146 Part I: The Nationalization of Politics

problems, and the Republican majority soon lost the will to act. Full citizenship for African
Americans would wait one hundred years for the emergence of northern politicians whose
constituencies favored intervention in race relations in the South.

The Jim Crow Era and Segregation: 1877–1933
In the 1890s Jim Crow laws (named after a popular minstrel show character of the era)
were adopted throughout the South to disenfranchise Black citizens and physically
separate African Americans and whites. These laws institutionalized segregation of
African Americans and whites in their access to schools, hospitals, prisons, public parks,

Originally titled The Clansman, The Birth of a Nation is recognized as both one of the most important films in the development of
American cinema and one of the most racist. The film’s depiction of freed Black men as villains and the Ku Klux Klan as the salvation
of humanity reveals the nation’s blatantly racist attitude toward African Americans at the time. It became a blockbuster hit, but not
without severe criticism. President Woodrow Wilson described it as “like writing history with lightning. And my only regret is that it is
all terribly true.”
Gado Images/Alamy Stock Photo

147Chapter 4: Civil Rights

restrooms, housing, and public conveyances. Indeed, hardly any government service or
social interaction between the races was unaffected.

But to secure segregation the southern states had to prevent Black citizens from vot-
ing, and so they did. By the end of the century all southern states constructed a maze of
electoral laws that systematically excluded African Americans from civic life. One com-
mon device, the white primary, excluded African Americans from voting in primary
elections. Because winning the Democratic primary in the solidly Democratic South was
tantamount to winning the general election, this law effectively disenfranchised south-
ern Black voters. Another effective barrier was the poll tax levied on all registered voters,
which typically had to be paid months before the election.

Perhaps the most notorious and effective legal barrier was the literacy test.
Local white registrars would require prospective Black voters to read and interpret arcane
passages of the state’s constitution. Few could satisfy the registrars’ rigorous demands,
and by 1910 fewer than 10 percent of Black men were voting in the South. These restric-
tive laws also caught many poor and illiterate whites. Most states, however, provided

This jarring photo of segregation was taken outside a Mobile, Alabama, department store in 1956 by Gordon
Parks, the first Black photographer at Life magazine.
Photograph by Gordon Parks. Courtesy of and copyright The Gordon Parks Foundation.

148 Part I: The Nationalization of Politics

grandfather clauses, which exempted from these registration requirements those whose
grandfathers had voted before the Civil War.

Without the backing of the Supreme Court, the southern state legislatures would have
found it harder to strip away Black civil rights. The Court generally upheld segregation
and disenfranchisement laws against challenges. Conversely, when federal laws extend-
ing rights to African Americans were challenged, the Court summarily overturned them.
The Court based these decisions on a tortuously narrow reading of the Fourteenth and
Fifteenth Amendments. Consider this passage from the Fourteenth Amendment: “No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States.” The Supreme Court interpreted this clause to mean only
that states could not abridge privileges conferred explicitly by the Constitution to the
national government, such as unrestricted interstate travel and open navigation of rivers.
The justices excluded state laws from the guarantees of the Bill of Rights. Decades later,
the Supreme Court would reject this interpretation of the Fourteenth Amendment and
rediscover the broad national guarantees this clause provides.*

The coup de grâce came in 1896 when the Supreme Court, ruling in Plessy v. Ferguson,
declared the South’s Jim Crow laws and systematic segregation constitutional.9 The case
arose when shoemaker Homer Plessy, who was seven-eighths white (but still Black,
according to law), appealed his conviction for having violated Louisiana’s segrega-
tion law by sitting in a “whites only” railroad car. The Court argued that the Fourteenth
Amendment’s guarantee of equal protection of the law referred only to “political” equal-
ity. If African Americans were socially inferior to whites, the Court reasoned, laws such
as Louisiana’s could reflect that inferiority so long as political equality was not compro-
mised. The Court then ruled that government-enforced segregation of the races was
constitutional as long as the facilities for African Americans and whites were equal. And
apparently they were, the Court reasoned; after all, whites were prohibited from sitting in
the Black passenger car. With that ruling, the Court established nationally the separate
but equal doctrine, which officially sanctioned segregation throughout the South for the
next half century. Dissenting justice John Marshall Harlan vigorously attacked the major-
ity’s reasoning in language that would provide a foundation for overturning the “separate
but equal” doctrine a half century later. Appearances of equality were a sham, he argued.
“Everyone knows that the statute in question had its origin in the purpose, not so much to
exclude white persons from railroad cars occupied by blacks, as to exclude colored people
from coaches occupied by or assigned to white persons.Ӡ

*Similarly, interpreting the Fifteenth Amendment, the Supreme Court held that state laws denying voting rights
to African Americans were permissible unless they could be shown to be motivated by race. By applying the poll
tax or literacy test to everyone, or even claiming to, the southern legislatures could satisfy the Court.
†Why did a mostly Republican-appointed Supreme Court interpret the Fourteenth and Fifteenth Amendments
in ways that negated Reconstruction? C. Vann Woodward reasonably conjectures that as Republican politicians
reoriented their party toward rapidly emerging business constituencies, Black civil rights became a low priority.
See Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (Boston: Little,
Brown, 1966), 22–50.

149Chapter 4: Civil Rights

Democratic Party Sponsorship of Civil Rights: 1933–1940s
From 1929 until 1933 the Republican Party presided over the worst depression in
American history. Among the many victims of the economic hard times was the party
itself. The Great Depression ended Republican dominance in national politics for the
next fifty years. Ironically, while the rest of the nation was abandoning the Republican
incumbent, Herbert Hoover, in favor of Democrat Franklin Roosevelt, most Black voters
were sticking with their party’s ticket in the presidential election of 1932, despite being hit
harder by the Great Depression than any other group of Americans. (By 1936, however,
three-quarters of African Americans supported Roosevelt’s reelection.) Today, the appeal
of mostly liberal Democratic politicians to Black voters appears quite natural, requiring
no special explanation. This partnership took nearly three decades to establish.

Both future partners first had to break enduring ties that pulled in opposing direc-
tions. The loyalty of Black voters to the Republican Party grew out of emancipation
and Reconstruction, and Democratic politicians had done nothing in the intervening
years to prompt African Americans to question their partisanship. But their loyalty was
rooted more in habit than reward and thus was susceptible to a Democratic appeal. For
Democratic politicians, taking up the cause of African Americans was fraught with risk.
Ever since its return to the Union, the South had provided the Democratic Party with
the electoral base it needed to compete nationally. Northern Democratic members of
Congress had long depended on the automatic victories of their southern colleagues to
win majority control of Congress. Democratic presidential candidates could count on the
South’s large bloc of electoral votes; all they had to do was ignore segregation, just as their
counterparts before the war had disregarded slavery.

The New Deal
Neither Franklin Roosevelt’s winning electoral campaign in 1932 nor his “New Deal”
to pull the nation out of the Depression overtly championed the cause of African
Americans. Both did, however, alter political circumstances in a way that prompted
Black Americans and Democratic politicians to contemplate their mutual interests.
When pressed, Roosevelt refused to battle southern Democratic senators for passage
of popular antilynching legislation, privately citing his need for friendly relations with
southern Democrats to enact his emergency economic policies.* Yet the New Deal’s
evenhanded treatment of the Black community appealed to Black voters. Many of its
programs offered African Americans government assistance for the first time since
Reconstruction. (Other programs, however, such as Social Security, excluded many
low-income occupations that were disproportionately Black.) Federal authorities

*Whereas President Roosevelt had been reluctant to back federal antilynching and anti–poll tax legislation,
many congressional Democrats introduced and championed hundreds of bills targeted at these and other civil
rights issues. (The legislation repeatedly passed in the House of Representatives but, just as in the antebellum
era, failed in the Senate, where the South held a greater share of the membership.)

150 Part I: The Nationalization of Politics

investigated racial discrimination in relief aid distribution, especially prevalent in the
South, and largely rooted it out. Roosevelt also appointed more than one hundred Black
administrators, some to prominent posts. Finally, the Justice Department rejuvenated its
long-dormant civil liberties division.

Following the White House initiative, congressional Democrats added nondiscrim-
ination language to a score of public laws creating federal programs. In 1941 Roosevelt
issued an executive order banning employment discrimination in federal agencies, and
he established the Committee on Fair Employment Practices to enforce nondiscrimina-
tion in defense-related industries. These measures, requiring that African Americans
be treated as ordinary citizens, represented a major breakthrough for America’s civil
rights policy.

African Americans and the New Deal Coalition
During the Roosevelt years, Democratic politicians continued to woo Black voters, but
from a sufficient distance to allow the Democratic Party to maintain its southern alliance.
Nonetheless, hindsight reveals that subtle changes were under way in the political land-
scape, leading up to political realignment and the Democratic Party’s embrace of Black
voters. In Washington twenty years of nearly uninterrupted Democratic control of both
the presidency and Congress replenished the Supreme Court and lower federal judiciary
with judges more sympathetic to civil rights claims. This laid the groundwork for an era of
active judicial intervention against state laws enforcing segregation, particularly in public

More important, African Americans gradually shifted their party loyalties from the
“party of Lincoln” to the “party of Roosevelt.” The political transformation could not have
been timed more propitiously for the Democratic Party, for hundreds of thousands of
these potential new Democrats were migrating from the South, where they could not vote,
to northern and midwestern cities, where Democratic political organizations eagerly reg-
istered and ushered them to the polls. The resulting demographic transformation of U.S.
cities, recorded in Table 4.2, reflects the cumulative effects of several distinct forces.* For
a century Black sharecroppers and tenant farmers had been one of the least mobile pop-
ulation groups in the nation. But World War II (1939–1945) sent many young Black men
from the segregated Deep South into the armed services, where they were stationed in
less racist, or at least less intimidating, communities. Other southern African Americans
were lured north by relatively high-paying jobs in wartime industry. Still others followed
after the war as farm mechanization rendered labor-intensive farming obsolete. Migration
transformed these Black citizens from political nonentities into pivotal voters.

*In Detroit, for example, the Black population doubled from 8 percent in 1930 to 16 percent in 1950, and
increased to 44 percent by 1970. Although Detroit had the most dramatic growth in Black population, every
major urban center throughout the nation experienced a similar trend. Edward G. Carmines and James A.
Stimson, Issue Evolution: Race and the Transformation of American Politics (Princeton, NJ: Princeton University
Press, 1989), Table 4-1.

151Chapter 4: Civil Rights

TABLE 4.2 The Road to Political Power: African Americans Migrate North

1930 1940 1950 1960 1970

All 12 SMSAs 7.6 9.0 13.7 21.4 30.8

New York 4.9 6.9 9.8 14.7 23.4

Los Angeles–Long Beach 5.0 6.0 9.8 15.3 21.2

Chicago 7.1 8.3 14.1 23.6 34.4

Philadelphia 11.4 13.1 18.3 26.7 34.4

Detroit 7.8 9.3 16.4 29.2 44.0

San Francisco–Oakland 4.9 4.9 11.8 21.1 32.7

Boston 2.9 3.3 12.3 9.8 18.2

Pittsburgh 8.3 9.3 18.0 16.8 27.0

St. Louis 11.5 13.4 5.3 28.8 41.3

Washington, DC 27.3 28.5 35.4 54.8 72.3

Cleveland 8.1 9.7 16.3 28.9 39.0

Baltimore 17.7 19.4 23.8 35.0 47.0

Source: Adapted from Leo F. Schnore, Carolyn D. Andre, and Harry Sharp, “Black Suburbanization, 1930–1970,” The
Changing Face of the Suburbs, ed. Barry Schwartz (Chicago: University of Chicago Press, 1976), 80. The figures were
transposed to yield data on Black percentages.

Note: The table shows the percentage of African Americans in central cities of the twelve largest standard metro politan
statistical areas (SMSAs).

Despite the increasing numbers of Democratic politicians committing to civil rights
reforms, segregation remained entrenched for as long as these politicians needed south-
ern Democrats to keep control of Congress and the presidency. This coalition began to
crack in 1948, however, when Democratic president Harry Truman openly courted
the Black vote for reelection, even at the risk of alienating the South. A faltering, strike-
plagued economy appeared to doom the unpopular president to electoral defeat.
Desperately searching for a winning campaign plan, Truman’s advisers proposed a novel
strategy for the Democratic Party: “Unless there are real and new efforts . . . to help the
Negro,” stated one strategy memo, “the Negro bloc, which, certainly in Illinois and prob-
ably in New York and Ohio, does hold the balance of power, will go Republican.” This
strategy prompted President Truman to issue an executive order integrating the armed
services and introduce legislation making Roosevelt’s Committee on Fair Employment

152 Part I: The Nationalization of Politics

Practices a permanent agency. He also sponsored a comprehensive civil rights bill, the
first since the end of Reconstruction, that finally made racial lynching a federal crime,
provided federal guarantees for voting rights, and prohibited employment and housing
discrimination.* With no chance of passing the legislation in the face of a certain south-
ern filibuster in the Senate, knowledgeable observers knew that the president’s gesture was
symbolic. Nonetheless, it placed civil rights on the Democrats’ “to do” agenda, along with
national health care.

At the Democratic Party’s national convention in the summer of 1948, liberal north-
ern Democrats pressed fellow delegates to adopt a strong civil rights platform. Southern

� MAP 4.2 Truman Wins the Presidency in 1948 Despite Dixiecrat Defection





(D-11) (SR-1)

Truman (Democrat) 303 57.0% 24,179,345 50%

189 35.5% 21,991,291 45%

39 7.5% 1,176,125 2%

Dewey (Republican)

(States’ Rights Democrat)

Wallace (Progressive)

Electoral Vote Popular Vote















MASS. (16)

CONN. (8)



W. VA.























R.I. (4)

0 0.0% 1,157,326 2%

Source: Presidential Elections, 1789–1996 (Washington, DC: CQ Press, 1997), 63, 115.

Note: Numbers in parentheses are electoral votes. One electoral vote from Tennessee went to the States’ Rights Democrat.

*The legislation, predictably, died in the Senate, where, armed with the filibuster, southern members prevented
it from coming to a vote.

153Chapter 4: Civil Rights

delegates were outraged and bolted from the meeting. In the fall these “Dixiecrats,” as they
were called, ran their own candidate, Strom Thurmond, under the States’ Rights Party
banner and pulled several southern states’ electoral votes away from the Democratic ticket
(Map 4.2). The defection reminded national Democrats that the South could be taken
for granted only so long as the party left segregation alone. Despite losing this traditional
stronghold, Truman won reelection.

The Truman administration’s unsuccessful 1948 attempts to enact a civil rights law,
like the defeat of the Wilmot proviso a century earlier, presaged a later victory by identify-
ing a political rationale for northern politicians to attack southern tyranny. With the New
Deal, the Democratic Party attracted activist liberals and union leaders who were ideolog-
ically committed to civil rights. Like Republican abolitionists one hundred years earlier,
their efforts made these activists important to their party, more than their numbers alone
would attest.10 But not until Democratic presidential candidates realized that the Black
vote might offset the potential southern losses did the party’s politicians have a collective
stake in advancing civil rights. Similarly, not until northern congressional Democrats dis-
covered that speaking out against southern segregation won them the votes of the recent
southern Black migrants did a congressional majority committed to breaking up segrega-
tion coalesce.

Emergence of a Civil Rights Coalition: 1940s–1950s
The 1950s saw only modest advances in civil rights, but a new coalition—requiring
renewed support for civil rights from the Republican Party and profound shifts within
the Democratic Party, whose leaders historically had been hostile to the cause of African
Americans—set the stage for success. Two landmark events of the 1950s stand out: the
historic Brown v. Board of Education of Topeka decision and the Civil Rights Act of 1957.11
Although important, both events proved more influential in identifying the issues and
cleavages for the next decade than in yielding real gains in civil rights.

The NAACP’s Litigation Strategy
In 1909 the National Association for the Advancement of Colored People (NAACP)
began to represent Black defendants throughout the South and to use the federal judi-
ciary to challenge the legal structure of segregation. Although southern opposition in
the Senate blocked legislative solutions, a decade of Roosevelt judicial appointments had
recast the Supreme Court and many federal district and appeals courts with judges more
sympathetic to the southern Blacks’ cause. One of its most important landmark victories
during these early years came in 1944, when the NAACP persuaded the Supreme Court
in Smith v. Allwright to throw out white primary laws.12 The Court ruled that because
race was the explicit criterion for discrimination, such laws violated the Fifteenth

Nowhere in the South, however, was the electoral potential of the Black vote close to
being realized. Long-standing Supreme Court doctrine requiring that plaintiffs prove a

154 Part I: The Nationalization of Politics

law’s discriminatory intent rather than simply demonstrate a bias in its effect frustrated the
NAACP’s efforts to dismantle other racial barriers. For example, in trying to eradicate the
poll tax, which also disenfranchised poor whites, the NAACP could not satisfy the Court’s
tough requirements.

In the 1940s the NAACP launched a second line of attack against Jim Crow laws,
this time targeting segregated public education. Since Plessy v. Ferguson in 1896, the
federal judiciary had upheld segregation in the South, but the “separate but equal” doc-
trine proved to be an easy target. The soft underbelly of segregation was the word equal.
Nowhere in the South did the separate facilities for African Americans equal those
for whites.

The NAACP targeted the most blatant disparities. Because many states did not pro-
vide Black graduate and professional schools and Black residents were shut out of both
public and private white facilities, the NAACP had a relatively easy time convincing the
Court of the inequality of separating the races in education. In Sweatt v. Painter (1950)
the Court unanimously agreed that the University of Texas could not stave off deseg-
regation at its law school by instantly creating a Black-only facility.13 Then the NAACP
successfully attacked segregated schools where separate facilities existed but were
patently unequal in the education offered students. Less conspicuous forms of inequal-
ity were taken on next. In a 1950 decision the Court accepted the argument that intan-
gible factors such as faculty reputation and alumni prestige contributed to educational

Brown Trumps Plessy
Having established that “separate but equal” could be unconstitutional, the NAACP
directly attacked Plessy. The opportunity came in 1950 when Oliver Brown, an assistant
pastor from Topeka, Kansas, violated local segregation laws when he tried to enroll his
daughter, Linda, in a white neighborhood public school. Representing the NAACP, future
Supreme Court justice Thurgood Marshall took up Brown’s case, which four years later
brought the pivotal Supreme Court ruling in Brown v. Board of Education of Topeka.
Writing for a unanimous Court, Chief Justice Earl Warren argued that education is the
foundation of good citizenship and thus constitutes “a right which must be made available
to all on equal terms.” Stipulating that racial segregation “generates a feeling of inferiority
as to [Black children’s] status in the community that may affect their hearts and minds in
a way unlikely ever to be undone,” Warren concluded, “separate educational facilities are
inherently unequal.” With this 1954 ruling, Plessy, the principal legal prop of Jim Crow,

The Brown decision, argued as a class-action suit on behalf of all citizens similarly
denied access to white public schools, had broad legal ramifications. The next year the
Court empowered lower federal courts to hear segregation cases and oversee the deseg-
regation of public schools with “all deliberate speed.”14 Hundreds of school desegregation
cases were filed in the federal courts in the decade after Brown.

155Chapter 4: Civil Rights

Yet even this flurry of litigation did
not end segregation. Efforts to imple-
ment Brown encountered all of the
problems associated with enforcing
judicial rulings. The decision was met
by massive resistance across the South.
Acting as if the nation were still gov-
erned by the Articles of Confederation,
some state legislatures boldly asserted
that public education lay beyond the
national government’s jurisdiction and
that they would ignore the Court’s “ille-
gal” decision. When this bluff failed,
state politicians devised more imagina-
tive blocking tactics. In Virginia public
schools were closed and “private” ones,
created with state financing, opened
in the vain hope that the new schools
would be exempt from the Brown rul-
ing. When these and other legal tricks were exhausted, state officials simply defied Black
parents and federal marshals sent to implement a desegregation ruling. The Supreme
Court itself intervened in 1957, ordering the city of Little Rock, Arkansas, to enroll Black
students in all-white Central High School. When Arkansas governor Orval Faubus and
school officials failed to comply, President Dwight Eisenhower sent in U.S. Army troops to
escort Black students to their new school.

The last bulwark of segregation’s defense was tokenism—perhaps the most successful
dilatory tactic of all. A school district would admit a handful of Black students and then
rush to federal court claiming compliance. The result would be another round of litiga-
tion during which further desegregation would be suspended. Civil rights lawyers may
have won many cases during this era, but their clients had little success in gaining access to
“whites-only” schools. In 1962, eight years after Brown, fewer than one-half of 1 percent of
Black students in the South were actually attending desegregated schools.

The 1957 Civil Rights Act: Rehearsal for the 1960s
The year 1957 was rife with political opportunity for the Democrats. With Republican
two-term president Dwight Eisenhower ineligible for reelection in 1960, the Senate was
full of ambitious Democrats grooming themselves for a presidential bid. John Kennedy
of Massachusetts, Stuart Symington of Missouri, and Hubert Humphrey of Minnesota
would later declare their candidacies and campaign actively in the 1960 presidential pri-
maries. Other, less daring Senate colleagues could barely contain their aspirations for the
top spot. Among them was Democratic majority leader Lyndon Johnson from Texas.

At least symbolically, Labor Day 1957 was a watershed event in school
integration. Elizabeth Eckford, textbooks in arm, and eight other Black
students were escorted through a hostile crowd into Little Rock’s Central High
Will Counts Collection, Indiana University Archives

156 Part I: The Nationalization of Politics

Daring or not, all would-be Democratic candidates
had to appeal to a national constituency that now included
substantial numbers of Black voters in the large, vote-rich
industrial states. For Johnson, a southerner, this require-
ment posed a serious problem. How could this Texan
establish his credentials with African Americans and
therefore be taken seriously by the northern Democratic
Party leaders who controlled the nomination?

Johnson’s vehicle into the national arena was the 1957
Civil Rights Act, which he introduced. This modest law
allowed African Americans who felt their right to vote
had been denied because of race to sue their state in
federal court. But the prospect of expensive litigation
and the provision that defendants—say, a local voter
registrar—would be entitled to jury trials proved such
formidable barriers that the NAACP and similar civil
rights organizations filed suits designed only to establish
widespread voting discrimination. To no one’s surprise,
few, if indeed any, Black citizens gained the vote by virtue
of this limited law.

The significance of Johnson’s strategic sponsorship of
the 1957 Civil Rights Act, then, lay more in what it rep-
resented politically than in any real gains it produced for
African Americans. Southern senators, who wanted to
boost Johnson’s presidential bid over those of northern
liberals Humphrey and Kennedy, strategically refrained

from vigorous opposition and, in a few cases, abstained in the final floor vote. This mes-
sage was reinforced by the passage of another, slightly less anemic, voting rights bill in
the spring of 1960, only weeks before many of these senators headed for the Democratic
presidential nominating convention. Although Johnson lost the Democratic presiden-
tial nomination to Kennedy, he won the consolation prize—the vice-presidential nomina-
tion. And ever mindful of the Black vote, Johnson and his colleagues oversaw enactment
of yet another minority voting rights law during the summer before the 1960 presidential

With passage of the Civil Rights Act of 1957, the first civil rights law since
Reconstruction, Democratic congressional leaders committed themselves to passing civil
rights legislation. This and other early civil rights laws represented a transition, not so
much for African Americans seeking full citizenship as for the Democratic Party.

Kennedy’s narrow victory in 1960 reminded Democrats once again that winning the
presidency without the South was virtually impossible. Even majority control of Congress
would be jeopardized if more southern politicians decided—as a few in fact had—to dis-
associate themselves from northern Democrats and change parties. But even if the party

Hazel Bryan was the jeering student who stood behind
Eckford in the previous photo. She would later rue
this moment, when she became “the poster child for
the hate generation, trapped in the image captured
in the photograph.” Later Bryan contacted Eckford to
apologize, and subsequently they jointly participated
in local racial tolerance workshops. This photo was
taken at the same site and by the same photographer
as the previous photo on the fortieth anniversary of this
historic moment.
Will Counts Collection, Indiana University Archives

157Chapter 4: Civil Rights

accepted these risks and championed civil rights, it still lacked sufficient votes to enact the
kinds of policies necessary to dismantle segregation. To jettison the party’s southern wing
by embracing civil rights and then fail to deliver on its commitment to the cause would
constitute political suicide.

Yet during the 1960s Democratic presidents Kennedy and Johnson and their congres-
sional colleagues broke with the South and committed the nation to an activist civil rights
policy before it was politically expedient to do so. Why? Because doing nothing suddenly
became the riskier strategy. A civil rights movement based on demonstrations and pro-
test was generating a groundswell of support throughout the nation that the Democratic
Party, which controlled Congress and the presidency, could not ignore. Failure to deal
with this issue would have jeopardized the political relations of many Democratic poli-
ticians with their core supporters. Then, in the 1964 election, an event rarer than Halley’s
Comet occurred: the emergence of a dominant governing coalition in Washington. Not
only did Democrats retain the presidency, but they also greatly enlarged their majorities
in both chambers of Congress. Like a comet, this coalition did not last long, but while
present it burned brightly. The result was half a decade of legislation followed by vigor-
ous enforcement of laws dismantling segregation and voting discrimination. Finally, the
national government had decided to finish the project of Reconstruction and assume
responsibility for every citizen’s civil rights.

The Civil Rights Movement: 1960s
Before the early 1960s, the civil rights movement, led by the NAACP, followed a strat-
egy designed to influence judges more than politicians. This strategy had garnered some
impressive court victories, but judicial successes had not translated into real gains in civil
rights. Entering the 1960s, the civil rights movement took a new course—public protests
directed against segregation and the authorities who administered it. Ultimately, the pro-
tests sought to influence public opinion and, in turn, Congress and the president.

This new course began in December 1955, when a Black seamstress, Rosa Parks,
boarded a city bus in Montgomery, Alabama. When Parks refused to surrender her seat
to a white patron and move to the back of the vehicle, as the law required, she launched the
historic Montgomery bus boycott, which became the model for later boycotts. In 1960 the
first “sit-in” was held when several Black college students in Greensboro, North Carolina,
occupied seats reserved for whites in a local restaurant and refused to move until they
were served or arrested.

Shifting strategy from litigation to mass demonstrations introduced collective
action problems that had to be solved for the civil rights movement to succeed. Who
would lead the movement in this new direction? Could the NAACP, an organization of
lawyers—many of them white, nonsouthern volunteers—be expected to engage in, much
less organize, massive civil disobedience? Disenfranchised Black southerners did not have
politicians—professionals in the art of solving collective action problems—to inspire and
organize efforts to bring down Jim Crow through confrontation.

158 Part I: The Nationalization of Politics

Ironically, segregation itself sup-
plied the leaders who would press for
its dissolution. Segregation in the South
separated the races in all aspects of
social organization: schools, churches,
entertainment, hospitals, and profes-
sions; even cemeteries were segregated.
Two largely parallel social groups coex-
isted in every community. Some Black
professionals—such as public school
teachers—worked under the supervi-
sion of white-controlled institutions
and would suffer serious repercussions
if they challenged segregation. Other
Black professionals, however, served
an exclusively Black clientele and were
fairly well insulated from white ret-
ribution: shop owners, morticians,
and especially preachers—the latter
were already well versed in organiz-
ing congregations and enjoyed credi-
bility among those they would ask to
make sacrifices. With control of scarce
resources—skill at organizing and
the trust of their congregations—and
largely exempt from the potentially
severe white reprisals, it is not sur-
prising that Black southern preachers

participated in planning and coordinating demonstrations. Hundreds of them mobi-
lized their congregations and coordinated with colleagues from other communities to
generate large, effective demonstrations. The most important of these leaders, Reverend
Martin Luther King Jr., was a Methodist minister. His organization, which during the next
decade spearheaded demonstrations throughout the South, was appropriately named the
Southern Christian Leadership Conference (SCLC).

King’s strategy of nonviolent demonstrations and other forms of resistance may have
been inspired by the Indian leader Mahatma Gandhi (1869–1948), but his political prag-
matism was a page out of James Madison’s playbook. Ultimately, King reasoned, rights
would be won not in the courts through cogent argument but in legislatures through
direct engagement with opponents whose interests were at stake. “Needless fighting in
lower courts,” King argued, is “exactly what the white man wants the Negro to do. Then
he can draw out the fight.”15 If African Americans were to realize their rights, he knew they
would have to claim them.

Rosa Parks, whose refusal to move to the back of a city bus in December 1955
touched off the historic Montgomery, Alabama, bus boycott, is fingerprinted by
Montgomery deputy sheriff D. H. Lackey. Her courageous act and subsequent
arrest triggered massive demonstrations in the city and a boycott of local
public transportation and white businesses. These events led eventually to
the dismantling of local segregation policies and stimulated other acts of civil
disobedience elsewhere.
AP Photo/Gene Herrick

159Chapter 4: Civil Rights

The first serious hurdle for the protest strategy was finding leaders who could bear
the heavy transaction costs and personal risks, and who possessed the communica-
tion and organizational skills to mobilize a population inexperienced in expressing its
grievances. The second problem, just as formidable, concerned the movement’s follow-
ers. Specifically, would ordinary African Americans agree to demonstrate in the streets,
boycott public transportation and white businesses, and confront local registrars bent on
denying them their right to vote? Many of these activities violated state and local segre-
gation laws; participants would face a legal system administered by unsympathetic offi-
cials. More important, the vast majority of Black southerners worked for white employers
who would actively discourage participation. With these disincentives, many (perhaps too
many) of those sympathetic with this new strategy might instead free ride.16 A success-
ful demonstration requires lots of people to voluntarily expose themselves to danger and
other sanctions. Yet every individual knew that his or her participation would not make or
break the demonstration. What would become of the civil rights movement if insufficient
numbers answered the call to action?

History showed otherwise.
Demonstrations began in earnest
in 1960, and over the next six years
almost twenty-five hundred were
held, with many receiving national
news coverage.17 In retrospect, the
success of the movement is easy
to understand. In addition to the
nationally prominent clergy in
SCLC headquarters, ministers with
the professional and rhetorical skills
to mobilize direct action ran most
of the eighty-five local chapters
throughout the South. Moreover,
these local leaders enjoyed excep-
tional credibility with those whom
they needed to motivate. When King
and other SCLC leaders endorsed
a boycott or some other action, the
local chapters served as a focal point
to coordinate a joint action. Without
the organizational efforts of these
local leaders, the movement would
not have enjoyed such broad-based

The pivotal protest of spring
1963 in Birmingham, Alabama,

The scene is Jackson, Mississippi, where the local lunch crowd is drenching lunch
counter demonstrators with mustard and ketchup. Such demonstrations occurred
throughout the South in the 1960s. Most of the demonstrators were local Black
and northern white college students.
Jackson Daily News/Clarion-Ledger

160 Part I: The Nationalization of Politics

forced the Democratic Party to commit to an
aggressive civil rights policy and led directly to
passage of the landmark Civil Rights Act of 1964.

The Birmingham Demonstration
In early 1963 President Kennedy pleaded for
patience from King and other leaders, arguing
that Congress should enact his less controver-
sial social programs before tackling segregation.
Civil rights leaders suspected that Kennedy’s
real motivation was to keep the South in the
Democratic column in the upcoming 1964 elec-
tion. King and the other leaders had their own
strategic reasons for impatience; demonstrations
were turning violent, and events were only par-
tially under their control. To keep the movement
directed toward civil disobedience and peaceful
protest, SCLC leaders needed to start producing

The selection of Birmingham as a protest
venue reflected the broad strategic purpose of
the demonstrations. Birmingham’s segregation
was no worse than in many other cities through-
out the Deep South. But Birmingham had a
notoriously intolerant local police chief, Eugene
“Bull” Connor, known for rough treatment of
civil rights demonstrators. He would provide a
graphic display of the institutional violence that

enforced segregation. As the nation watched on network television, Connor arrested and
jailed two thousand marchers for not having a parade permit. The local law enforcement
officers then resorted to police dogs and fire hoses to disperse peaceful demonstrators,
including children barely old enough to go to school.

The Birmingham demonstrations succeeded when the city’s business community
agreed to negotiate with the protesters. But more important, the protesters created a
national crisis that President Kennedy could not ignore. From April to July 1963, the per-
centage of Gallup poll respondents mentioning civil rights as the most important problem
facing the country shot up from 10 percent to nearly 50 percent.

Suddenly, continued accommodation of southern Democrats imposed significant
political costs for Kennedy. Failure to act might irreparably damage his reputation among
Black voters who might well provide a margin of victory in a reelection bid. These events,
orchestrated by the civil rights movement, turned the president into a reluctant champion

Protesters parading down the streets of Birmingham, Alabama, in
1963 were bent on focusing national attention on their cause. The
local police proved quite accommodating in demonstrating to the
horror of television viewers throughout the nation the brutality with
which segregation was enforced.
AP Photo/Bill Hudson

161Chapter 4: Civil Rights

of its cause. Shortly after a televised address to the nation unveiling the new civil rights leg-
islation, Kennedy invited movement leaders to the White House to plan a legislative strat-
egy. The president explained to the group the bind he and the Democratic Party were in:

This is a very serious fight. The Vice-President [Lyndon Johnson] and I know
what it will mean if we fail. I have just seen a new poll—national approval of the
administration has fallen from 60 to 47 percent. We’re in this up to the neck.
The worst trouble of all would be to lose the fight in the Congress. We’ll have
enough trouble if we win; but, if we win, we can deal with those. A good many
programs I care about may go down the drain as a result of this—we may go
down the drain as a result of this—so we are putting a lot on the line.18


The 1964 Civil Rights Act and
Integration of Public Schools
One of the most effective provisions of the 1964
Civil Rights Act authorized the Department
of Health, Education, and Welfare to withhold
federal grants from school districts that failed to
integrate their schools. No longer could southern
school boards hide behind token desegregation
and endless visits to the federal courts. The

effects were quick and dramatic: within a year
more Black children were admitted to formerly
all-white schools than in the entire decade after
the 1954 Brown v. Board of Education of Topeka
decision. Within ten years over 90 percent of
Black children in the South were attending
desegregated schools.

� FIGURE 4.1 Percentage of All
Southern Black Schoolchildren
Attending School with Whites,

















Source: Gerald N. Rosenberg, Hollow Hope: Can
Courts Bring about Social Change? (Chicago:
University of Chicago Press, 1991), 50–51.

*Dashed line indicates missing data for 1967.

162 Part I: The Nationalization of Politics

Democrats were about to commit to a strong civil rights program without having the
means to succeed.19

The Democratic Party’s Commitment to Civil Rights
On June 11, 1963, President Kennedy addressed the nation, proclaiming his full support
for the aspirations of African Americans and announcing a major revision of the civil
rights bill then before Congress. The courts would no longer determine violations; for
the first time federal agencies could independently identify discrimination and impose
remedies. Although this new proposal was far weaker than the sweeping civil rights
reforms King and his colleagues had requested, they accepted it as a solid step in the right

Five months later Kennedy was assassinated, and Vice President Johnson succeeded
to the presidency. At the time, a strengthened version of the legislation, which had passed
the House of Representatives on a bipartisan vote, was predictably stalled in the Senate.
Southern senators did not have enough votes to defeat the legislation outright, but they
were prepared to filibuster it indefinitely.*

Within a few days of assuming the presidency, Johnson addressed a joint session of
Congress and a nationwide television audience to announce that a strong civil rights law
would be the nation’s memorial to the fallen president. This proclamation set the stage for

a struggle in Washington. The outcome
would make 1964 a year of historic
successes for both civil rights and the
Democratic Party.

The 1964 Civil Rights Act
Once Johnson persuaded Senate
R e p u b l i c a n s t o j o i n n o r t h e r n
Democrats in breaking the southern
filibuster, the Senate promptly passed
the Civil Rights Act of 1964. This law,
which was substantially stronger than
the legislation President Kennedy had
introduced, authorized the national
government to end segregation in pub-
lic education and public accommoda-
tions (see the Politics to Policy box, “The
1964 Civil Rights Act and Integration of
Public Schools”).

For years Georgia senator Richard Russell (right) and other southerners had
blocked civil rights legislation with the threat of a filibuster. New president
Lyndon Johnson (left), however, was not deterred in his push for civil rights
legislation. Here, two weeks after President John Kennedy’s assassination,
Johnson warns his Senate mentor to stand aside or be run down.
Lyndon B. Johnson Library Collection

*The filibuster, allowing a minority of the Senate membership to delay floor consideration of legislation, is
discussed more fully in Chapter 6.

163Chapter 4: Civil Rights

The Democratic administration’s high-profile sponsorship of the civil rights law
put forth civil rights as a decisive campaign issue in the 1964 presidential election. The
Republican Party in Congress traditionally had been more supportive of civil rights than
the Democrats, but in 1964 it began to veer sharply away from its long-standing support.
At their national convention Republicans chose Barry Goldwater of Arizona as their
presidential candidate, one of the few senators outside the South to oppose the 1964 civil
rights bill. When the Democrats convened to nominate the incumbent president Johnson,
they underlined the party differences on this issue by seating delegates who challenged
segregationist Democrats and by selecting as Johnson’s running mate Senator Hubert
Humphrey, a longtime vocal proponent of civil rights.

The outcome of the election was the largest presidential landslide in history up to
that time. The Democrats also racked up huge majorities in the congressional elections.
Goldwater won only five states in the Deep South and his home state of Arizona. With
over 95 percent of Black voters preferring Johnson, the Democratic and Republican
Parties swapped constituencies in the South.20 When the new Congress convened in
1965, northern Democrats dominated both chambers. Even some border states elected
Democrats who were moderate supporters of civil rights and who were prepared to
support national policies that would dismantle segregation. Finally, the sheer magni-
tude of the Democratic victory swamped the Constitution’s separation-of-powers bar-
rier to collective action. With the severe transaction costs of policymaking swept away,
the Washington cognoscenti and ordinary voters alike sensed that the Johnson landslide
would bring about an onslaught of civil rights legislation (refer to Map 4.3).

The Voting Rights Act of 1965
Every civil rights law enacted since 1957 addressed voting rights, but throughout much of
the South Black registration remained at low levels. Only 7 percent of eligible Black citi-
zens in Mississippi were registered in 1964; in Alabama the figure was 23 percent. Each of
these civil rights laws had the same fatal flaw: they required individuals to prove discrimi-
nation in court. Black leaders thus pressed the White House to authorize federal agencies
to guarantee the right to vote by taking over voter registration or directly supervising local
officials, just as the 1964 Civil Rights Act authorized government action against segrega-
tion in education and public accommodations.

Responding to their pleas, President Johnson asked King and other leaders to “give the
nation a chance to catch its breath” on civil rights. After all, African Americans would be
well served, Johnson argued, by his Great Society programs in employment, education,
and health care. But for movement leaders, Johnson’s request asked too much. King and
his colleagues knew that not since Reconstruction had such large, sympathetic majorities
controlled both houses of Congress, yet from recent experience, they also knew precisely
what was needed to spur legislative action.

The spring 1965 demonstrations in Selma, Alabama, closely paralleled the 1963
Birmingham actions. Brutal local law enforcement—attack dogs, club-wielding police

164 Part I: The Nationalization of Politics

� MAP 4.3 The Key to Unlocking Black Voting Rights: Vigilant Administration of Civil Rights




States using local poll tax to discriminate
against black voters until 1965

Percentage of registered
voters among African
Americans of voting age

1964 The Twenty-fourth Amendment to the Constitution
outlaws the poll tax in federal office elections.

1964 The Civil Rights Act gives the U.S. attorney general power to
guarantee voting rights for all and mandates equal access to
public accommodations.

1965 The Voting Rights Act abolishes the remaining barriers to
black voting registration, including literacy tests.












31% 32%




5% 7%


14% 23%




64% 62%


39% 51%



69% 73%

38% 47%


Source: Harold W. Stanley, Voter Mobilization and the Politics of Race: The South and Universal Suffrage, 1952–1984 (Westport, CT: Praeger,
1987), 97. Copyright © 1987 by Harold W. Stanley. Reproduced with permission of Cambridge University Press.

on horseback, and liberal use of powerful fire hoses—yielded vivid television images
of the official violence that enforced segregation. Civil rights leaders again succeeded
when President Johnson went on prime-time television to introduce new civil rights

Ignoring the outcry of southern senators, Congress passed and the president promptly
signed the Voting Rights Act of 1965. The law was aggressive—its drafters knew that
virtually everyone added to the registration rolls would soon be voting Democratic. Its
main provision authorized the Department of Justice to suspend restrictive electoral

165Chapter 4: Civil Rights

tests in southern states that had a history of low Black turnout. In these states the Justice
Department could (and did) send federal officers into uncooperative communities to
register voters directly. The states also had to obtain clearance from the Justice
Department before changing their election laws. Though the Antifederalist Patrick Henry
might have turned over in his grave at the thought of the Voting Rights Act and federal
registrars entering his home state of Virginia, the policy was perfectly consistent with
Madison’s proposed national veto over objectionable state laws.

Few laws have ever achieved their goals more dramatically or quickly. Registration
soared, yielding dramatic effects. For the first time southern politicians paid attention to
their newly registered Black constituents. In 1970, when several southern senators polled
their colleagues about opposing an extension of the voting rights law, they found little
enthusiasm. Democratic conservative Herman Talmadge of Georgia begged off: “Look,
fellows, I was the principal speaker at the NAACP conference in my state last year.” And
South Carolina Democrat Ernest Hollings was direct: “I’m not going home to my state and
explain a filibuster to black voters.”21 Moreover, from 1970 to 2011, the number of Black
elected officials at all levels of government grew from 1,469 to 10,500.22 Many of these men
and women won office by appealing in part to white voters. In a real sense these many
local officeholders paved the way for Barack Obama’s success.

Current Civil Rights Policy
With one exception (changed by the U.S. Supreme Court in 2013), the civil rights laws
enacted in the 1960s remain in force today, and many of them have been strengthened
during both Republican and Democratic administrations through new legislation, regu-
lations, and judicial decisions. The federal bureaucracy has assumed a prominent role in
implementing policies enacted during the civil rights movement. Revised public accom-
modations and fair housing laws specifically redelegated principal enforcement authority
from the courts to federal agencies. Rather than having to investigate and prove a specific
discriminatory act in a judicial proceeding, the government could focus instead on the
“outcome” of local practices.

An early target of administrative agencies’ implementation of the recent civil rights
laws was public primary and secondary schools. When the enforcement agencies
searched for evidence of discrimination in the proportions of Black versus white enroll-
ments, they netted many schools outside the South where de facto (not state mandated)
segregation was generating the same patterns as those mandated by state law (de jure
segregation) in the South. Outside the South, residential segregation was the culprit. It
too was a by-product of former discriminatory housing laws that kept neighborhoods
and their schools segregated.* When the courts and federal agencies decided jointly to

*Until the Supreme Court ruled them illegal in 1968, restrictive covenants were commonly embedded in prop-
erty deeds, preventing owners from selling the property to Jews and African Americans. Jones v. Alfred H.
Mayer Co., 392 U.S. 409 (1968).

166 Part I: The Nationalization of Politics

TABLE 4.3 Major Events in the Civil Rights Movement, 1955–1968

December 1955 African Americans in Montgomery, Alabama, begin boycott of city buses in protest
of segregated seating.

September 1, 1957 Central High School in Little Rock, Arkansas, engulfed in turmoil as the governor
calls out Arkansas National Guard to prevent enrollment of nine black students.
President Dwight Eisenhower forced to send in federal troops to restore order.

February 1, 1960 Wave of “sit-ins” touched off across the South by four students in Greensboro,
North Carolina, who are refused service at a segregated lunch counter.

May 4, 1961 “Freedom rides” begin as African Americans try to occupy “whites only” sections of
interstate buses. U.S. marshals ultimately are called in to settle violent reaction to
Black efforts.

September 30, 1962 Federal troops are used to quell a fifteen-hour uprising by University of Mississippi
students protesting the enrollment of a single Black student, James Meredith. Two
students are killed. (Televised live across the nation.)

April 1963 Demonstrations begin in Birmingham, Alabama. Local authorities use fire hoses
and police dogs to disperse demonstrators.

August 28, 1963 March on Washington by more than two hundred thousand African Americans and
whites. Reverend Martin Luther King Jr. delivers his “I Have a Dream” speech, and
“We Shall Overcome” becomes the anthem of the civil rights movement.

September 1963 Demonstrations begin in St. Augustine, Florida, to protest the arrest and detention
of seven students. African Americans boycott several northern schools in protest
of de facto segregation. Four Black children are killed in bombing of Birmingham,
Alabama, church.

June 1964 Three civil rights workers, two white and one Black, working to register Black voters
are killed in Mississippi. Murderers include sheriff’s deputies.

July 1964 First in a wave of ghetto riots breaks out in New York City’s Harlem.

January 1965 King organizes protest marches in Selma, Alabama. Marches end in violent attacks
by police.

August 11, 1965 Ghetto riots erupt in Watts section of Los Angeles. Four thousand rioters are
arrested; thirty-four are killed.

June 6, 1966 James Meredith suffers gunshot wound in march across Mississippi.

Summers 1966 and 1967 Riots and violent demonstrations occur in cities across the nation.

April 4, 1968 Martin Luther King Jr. assassinated in Memphis, Tennessee.

167Chapter 4: Civil Rights

TABLE 4.4 Key Provisions of Federal Civil Rights Legislation

Civil Rights Act, 1957 Established U.S. Commission on Civil Rights to investigate the status of civil rights in
the country. Made it a federal crime to attempt to prevent a person from voting.

Civil Rights Act, 1960 Increased sanctions against abridging or denying the right to vote. Permitted federal
government to appoint “referees,” under the jurisdiction of the courts, to register
voters denied the right to vote by a pattern or practice of discrimination.

Civil Rights Act, 1964 Voting: By equating a sixth-grade education with literacy, the act made it more
difficult to disenfranchise African Americans through literacy tests.

Public accommodations: Barred discrimination on basis of race, color, religion, or
nationality in restaurants, service stations, theaters, transportation, and hotels with
five rooms or more. Empowered attorney general to initiate suits.

Schools: Authorized attorney general to bring suit against segregated schools. Also
permitted federal government to withhold funds from segregated schools.

Employment: Barred discrimination on the basis of race, color, religion, nationality,
or sex in a range of employment practices. Established Equal Employment
Opportunity Commission to enforce this provision.

Voting Rights Act, 1965 Permitted appointment, under Civil Service Commission, of voting examiners in
place of local registrars in all areas where less than 50 percent of those eligible to
vote actually voted in the 1964 presidential election. Use of literacy tests and similar
mechanisms suspended.

Age Discrimination in
Employment Act, 1967

Prevented employment discrimination based on age for workers forty to sixty-five
years old. Later amended to prevent mandatory retirement.

Fair Housing Act, 1968 Outlawed refusal to rent or sell housing on grounds of race or religion but exempted
citizens who rented or sold their homes without using a real estate agent.

Rehabilitation Act,

Instituted affirmative action programs for employers to hire “qualified handicapped
individuals” and barred discrimination solely on the basis of a disability.

Restoration of Civil
Rights Act, 1988

Applied anti–sex discrimination standards to all institutions’ programs if the
institution received federal funding.

Civil Rights Act, 1991 Gave victims of intentional discrimination based on sex, religion, or disability the
right to sue for monetary damages. (Victims of racial discrimination had had this
right since a Reconstruction-era law.)

force school districts to bus students, to sometimes distant schools for the sake of inte-
gration, the measure produced waves of public protests. Indeed, busing proved to be one
of the most contentious civil rights policies of the last third of the twentieth century. In
many communities, it spurred “white flight” to districts that lay beyond busing with the

168 Part I: The Nationalization of Politics

unintended consequence of increasing racial segregation. In recent years, as busing has
declined as the judicially preferred remedy, it has also waned as a political issue.

Beyond the Voting Rights Act
The 1965 Voting Rights Act was the culminating achievement of the 1960s civil rights
movement. For the next four decades the nine southern states falling under the law rou-
tinely submitted, for preclearance, state election law changes and redistricting modifica-
tions to the Department of Justice. Congress reauthorized the law each time it was set to
expire. In 2013, however, the Supreme Court ruled that nearly half a century after pre-
clearance had been put in place, it was no longer needed to prevent discrimination, and,
as such, it posed an undue burden on states, thus violating the Constitution’s delegation
to the states’ responsibility for conducting elections.23 This decision left much of the law
in place, but it shifted the burden to voters to challenge in court a state’s or community’s
changes in voting rules.

At about the same time controversy ignited when recently elected Republican state
legislatures throughout the country began tightening voter qualification laws and elec-
tion procedures. Most of these laws have been challenged in the courts as intentionally
discriminatory against minority groups, who happened to be predominantly Democrats.
Laws requiring photo identification—such as a driver’s license or a state identification
card—pose a difficulty for thousands of, mostly minority, citizens to get to their DMV
to obtain photo identification (even though many of them do not drive). The Supreme
Court had previously upheld the right of states to require photo identification—generally
speaking—as a justifiable protection against voter fraud, but not for purposes of discrim-
ination (in many of these states, employer and school photo identification cards did not
suffice).24 Other state laws reduced the time available for early voting in ways that damp-
ened minority turnout; still others make voter registration more difficult by eliminating
same-day registration and/or limiting voter mobilization drives.25

Entering the 2020 campaign, due to the COVID-19 pandemic, more states began to
allow no-excuse absentee voting. In fact, ten states will mail ballots to all voters for the
November election (Hawaii, Colorado, Oregon, Utah, and Washington already have such
a policy on the books while Nevada, New Jersey, Vermont, California, and the District
of Columbia changed to this policy because of the pandemic). Taking this tack allows
citizens to skip the voting lines that may not be properly socially distanced. In response to
such decisions, however, the Trump administration sued at least two states (New Jersey
and Nevada). Map 4.4 displays the mail-in voting procedures across all states for the 2020

Affirmative Action in Higher Education
In the 1980s and 1990s civil rights enforcement moved beyond the South to include
a broad range of government and private actions that appeared racially discriminatory.
Note that the government found straightforward solutions for redressing discrimination

169Chapter 4: Civil Rights

� MAP 4.4 State Voter ID Requirements, 2020






































Strict photo ID required
Strict non-photo ID required
Photo ID requested
ID requested, no photo
No document required








Source: National Conference of State Legislatures, Voter Identification Requirements Voter ID Laws, as of August 2020, accessed at

in voting rights and schools: it enrolled previously disenfranchised Black voters and
redirected students from segregated to racially integrated schools.

Beginning in the 1970s and continuing today, national policy has sought not just to erad-
icate discrimination but also to redress the lingering effects of past discrimination on oppor-
tunities currently available to minorities. If entry into the construction trade depended on
acquiring specific skills and training to which African Americans had for generations been
barred, then mandating that a contractor not discriminate in hiring skilled workers and
subcontractors would have no practical effect. Ending discrimination would not in itself
necessarily introduce equal opportunity, much less lead eventually to an integrated society.

170 Part I: The Nationalization of Politics

Enter affirmative action. In the early 1970s affirmative action represented a policy
that requires those employers and schools that had practiced past discrimination to com-
pensate minorities (and, subsequently, women) by giving them special consideration in
hiring and school admissions. The simplest way to implement this policy involved quotas
requiring recruitment of an equal or some proportionate number of minorities. This early
form of affirmative action has been thoroughly rejected by both the federal courts and the
American public. In the first and still definitive case, Regents of the University of California
v. Bakke (1978), the Supreme Court decided that, though creating an admission quota for
minority students might serve the laudable goals of addressing past wrongs and attaining
a diverse student body, the university medical school’s approach violated the equal protec-
tion rights of white applicants.26

During the intervening decades the Supreme Court has decided numerous affirma-
tive action cases without resolving the issue of preferential treatment beyond outlawing
quotas. Virtually all of the tough cases that have reached the Court have been decided by
a single vote, with the balance teetering in favor of or opposition to affirmative action.
Where in 1987 the Court ruled that gender could be considered along with other criteria
in promotion decisions, and apparently even without evidence of past discrimination, by
1995 it was sanctioning only “narrowly tailored” standards designed to achieve a “compel-
ling government interest.”27

Since the 1990s, the main arena for affirmative action in education has shifted to
higher education. The most recent decisions find the Court still grappling to identify
acceptable avenues for favoring some applicants over others without using quotas. In
2003 it decided a pair of long-anticipated University of Michigan cases that had received
apparently contradictory rulings at the appeals level. The Court’s decisions reflected its
own ambivalence over affirmative action; both were 5–4 and reached opposite results.28 In
the undergraduate case, the Court ruled that although diversity in higher education could
be a “compelling interest,” the university’s assignment of one-fifth of the total points for
admission on the basis of race was unconstitutional. The law school program, however,
passed muster because race was merely one of the factors that the law school considered.
But even that ruling provoked a vigorous dissent, and since then changes in membership
have shifted the Court in a more conservative direction.*

Nine years later, the Supreme Court returned to the issue in a case brought by a
white student who was denied admission to the University of Texas. The plaintiff argued
that, because the University of Texas’s policy of admitting any high school student who
ranked in the top 10 percent of his or her class had resulted in the admission of substan-
tial numbers of African American and Hispanic students, it did not need to reserve a
share of admissions in which the applicant’s race would be a criteria for admission. After
a series of intermediate decisions in which the case bounced around federal courts, the

*Sandra Day O’Connor, the pivotal vote and author of the majority’s opinion in the law school case, retired and
was replaced by the distinctly more conservative justice Samuel Alito.

171Chapter 4: Civil Rights

Supreme Court ruled in 2016 that the university could overenroll Black students in order
to attain diversity. Although it allowed the university discretion in this case, the majority
advised that other kinds of affirmative action policies used by universities might not pass

One can find parallels in public opinion with the judiciary’s collective ambivalence
with affirmative action policy. National surveys convey a public that mostly favors the
principle of affirmative action while disapproving of almost every specific approach
for achieving it. One 2012 survey taken during the Court’s deliberation of the Michigan
cases found most respondents strongly opposing preferential treatment. When asked,
“As you may know, the U.S. Supreme Court will be deciding whether public universities
can use race as one of the factors in admissions to increase diversity in the student body.
Do you favor or oppose this practice?” 65 percent registered opposition, and 26 percent
registered support. Yet the same survey found a majority (49 to 43 percent) endorsing
affirmative action in order to overcome past discrimination as long as it did not involve
“rigid” quotas. Moreover, whenever voters have been presented with this issue in a ref-
erendum, a clear majority voted to outlaw racial and other preferences in university

Despite existing policies that seek to increase racial diversity in schools, the COVID-19
pandemic has already led to increased educational and, ultimately, economic inequalities.
The reason is that many families of color rely on schools to feed their children, provide
health care, and offer access to library materials. With stay-at-home orders and online
teaching, these families do not have such access. Thus, we see the increased inequality
between white families and families of color.

The Legacy of the Civil Rights Movement
Although race remained a prominent civil rights issue in the 1970s, the civil rights move-
ment branched out to include women, the elderly, the disabled, the LGBTQ+ community,
and virtually every ethnic minority. The new directions of civil rights over the past several
decades owe their progress, however, to African Americans’ two-hundred-year struggle
for civil rights. It paved the way politically for these new efforts, both in honing the tech-
niques of demonstrations and protests and in creating a receptive audience in the news
media and American public opinion. But most important, the Black civil rights move-
ment built a foundation of federal laws, judicial precedents, and administrative regula-
tions that could be easily extended to other groups.

Equal Rights for Women: The Right to Vote
Long before abolitionists took up the cause of slavery, early feminists, later calling them-
selves suffragists, were campaigning for the vote (many early suffragists also were active
in movements for prison reform, public education, temperance, and, above all, abolition

172 Part I: The Nationalization of Politics

of slavery). These women viewed their cause as inextricably linked to full citizenship for
African Americans in the “rising tide of prodemocratic sentiment.”*

Despite the efforts of the suffragists, voting rights for African Americans tracked very
different courses from the late 1840s to the late 1860s. Ironically, enslaved people were
liberated and Black males given the vote, whereas women, despite needing to traverse a
much shorter distance, had progressed little toward gaining the franchise (on two other
issues—allowing inheritance and access to public education—the movement successfully
revised many state laws).

Suffrage leaders Elizabeth Cady Stanton and Susan B. Anthony actively lobbied to
include women in the Fourteenth Amendment and probably expected to succeed.30 As
Stanton famously declared, Black suffrage opened the “constitutional door,” and the suf-
fragists intended to avail [themselves] of the strong arm and the blue uniform of the black
soldier to walk in by his side.Ӡ Their expectations were dashed when Republican leaders
explicitly limited the amendment to male citizens. Claiming that including women would
have endangered ratification, Republican politicians clearly viewed women’s suffrage to be
a costly issue.‡

Unlike the Black vote, which contemporaries agreed would go directly to the
Republicans, the women’s vote appeared to confer little advantage to either party. Without
a compelling political advantage to be gained, few politicians were prepared to absorb the
heavy political costs of extending the vote to women. This is consistent with the history
of suffrage. Enthusiasm for women’s suffrage appears to have been concentrated among
the urban, upper-middle class. Various other women’s groups either opposed or ignored
the issue. Unlike the black vote—desperately needed by Republicans if they hoped to
retain control of Congress and the presidency after the rebel states were readmitted into
the Union—the women’s vote, especially given the narrow support base for this reform,
conferred little political advantage to Republicans.§ “Sex” was excluded from the Fifteenth

*During the colonial era, single property-owning women in New Jersey could vote. See Alexander Keyssar,
The Right to Vote (New York: Basic Books, 2000); and Judith Apter Klinghoffer and Lois Elkis, “The Petticoat
Electors: Women’s Suffrage in New Jersey, 1776–1807,” Journal of the Early Republic 12 (1992): 159–193.
†See Ellen Carol Dubois, “Outgrowing the Compact of the Fathers: Equal Rights, Women’s Suffrage, and the
United States Constitution, 1820–1878,” Journal of American History 74, no. 3 (December 1987): 836–862, at
‡In one particularly heated exchange, Frederick Douglass—a former enslaved person who had been present
at the first national suffrage conference at Seneca Falls in 1848—argued that only when white women were
“dragged from their houses and hung upon lamp-posts” would they have “an urgency to obtain the ballot equal
to our own.” Susan B. Anthony gave the withering response: “If you will not give the whole loaf of suffrage to the
entire people, give it to the most intelligent first.” Mari Jo Buhle and Paul Buhle, The Concise History of Woman
Suffrage (University of Illinois Press, 1978), 258.
§Ironically, the difference in the partisan advantage between Black and female vote extensions might well
explain the historical differences in the success of these groups in exercising their newly won franchise. The
reemergent Democratic Party throughout the South later systematically stripped the vote from the formerly
enslaved with literacy tests, white primary laws, and poll taxes. Threatening no one, other than saloon propri-
etors, women exercised their franchise largely unhindered. Indeed, both political parties took credit for their
newly won right and appealed for their support.

173Chapter 4: Civil Rights

Amendment. Except for local school board elections and liquor referenda in twenty states,
women did not obtain the franchise until 1869, when the territory of Wyoming passed the
first women’s suffrage law.31

Having lost out in the Reconstruction amendments, the women’s movement set out
to build national support. Yet with only women remaining on the outside of the polling
booth (at least formally), the movement no longer could cast its appeal in terms of univer-
sal suffrage. Now, women’s suffrage became a women’s issue and gave rise to two widely
circulated and seemingly incompatible lines of arguments. Some proponents struck
a conservative note. The more conservative line queried the inconsistency of denying
women the vote when so many ill-informed and illiterate immigrant men were voting.
The southern variant of this argument had the white women’s vote diluting any chance
of African Americans winning elections. At the other end of the ideological contin-
uum, recasting the women’s vote as a women’s issue connected with a broader feminist
platform. Denial of the franchise was simply emblematic of women’s subjugation, a
condition entrenched in the traditional family structure. Prominent women’s issues
today found their origins in the arguments of many late-nineteenth-century suffragists.
These strongly held, incompatible views invariably competed for leadership of the move-
ment. Whether these organizational weaknesses reflected or contributed to the failure of
women’s suffrage to win public support is difficult to say. As long as these fissures per-
sisted the women’s movement continued to attract supporters for various causes all along
the ideological spectrum—including vocal pacifism during World War I—and it took
nearly four decades to achieve the Nineteenth Amendment. Gradually, public support for
women’s suffrage increased, first in Wyoming in 1869 and over the next several decades in
other, mostly western states. By 1919, fifteen states had given women the right to vote in
at least some elections. Congress renewed consideration repeatedly from the mid-1880s
until 1919, when, with President Woodrow Wilson’s strong endorsement, two-thirds of
both the House and the Senate sent the Nineteenth Amendment to the states for ratifica-
tion. The next year, the states ratified it.

Women, unlike African Americans, experienced little delay in implementing the
right to vote. Although registration rates varied across states, women’s rates approached
three-quarters of men’s within a decade after ratification. Over the next decade or so
women were voting regularly at a rate only slightly below that of men.

Women’s Rights in the Modern Era
The modern extension of subsequent civil rights guarantees to women clearly followed
the civil rights movement. In fact, through a political miscalculation, sex discrimination
was outlawed in the 1964 Civil Rights Act. Initially the legislation included language that
covered discrimination based only on religion, national origin, and race. Southern oppo-
nents proposed and voted to add sex to this list, certain that it would decrease overall sup-
port for and ultimately defeat the civil rights bill. This strategy of weighing the legislation
down with controversial provisions backfired, however, when Congress accepted their
amendment and proceeded to pass the legislation.

174 Part I: The Nationalization of Politics

The surprising legislative victory did not lead to immediate enforcement, how-
ever, even though the 1964 law created an enforcement mechanism—the new Equal
Employment Opportunity Commission (EEOC)—authorized to investigate and file suits
against racial discrimination in the workplace. With one early EEOC commissioner call-
ing the sex discrimination policy “a fluke,” the commission initially balked at enforcing
the employment discrimination protections for women. But the agency revised its orien-
tation after a successful political campaign focused national attention on employment dis-
crimination against women.

The National Organization for Women (NOW) was formed in 1966 in direct reac-
tion to the EEOC’s refusal to enforce this provision. Organized along the same lines as
the NAACP, NOW initially pursued a litigation strategy with mixed success. To establish
a stronger legal foundation, NOW and other women’s rights organizations dusted off the
Equal Rights Amendment (ERA), which had been introduced in Congress in 1923 and
every year thereafter with little fanfare and poor prospects. The amendment gave Congress
the authority to implement the following statement: “Equality of rights under the law shall
not be denied or abridged by the United States or by any State on account of sex.”

Using many of the same tactics honed by the civil rights movement—demonstrations,
televised appeals, Washington rallies, and intense lobbying—NOW and other feminist
organizations won over a sympathetic public. The mostly male members of Congress
were not far behind. After languishing for years, the ERA was sent to the states in 1972,
and within the first year twenty-two of the required thirty-eight states voted for ratifica-
tion. But then the amendment hit a brick wall with the abortion issue (discussed more
fully in Chapter 5).32 Thus instead of pitting men against women, as the Nineteenth
Amendment had done earlier in the century, the ERA divided feminist and antiabortion
women’s groups. What began as an uncontroversial endorsement of women’s rights—after
all, the amendment’s wording simply asserts that women enjoy the same rights as men—
ended in strident, contentious rhetoric between opposing camps.* On June 30, 1982, the
timetable for ratification expired, and the ERA became history. Despite the expiration
date, on January 15, 2020, the Virginia legislature symbolically ratified the proposed
amendment, becoming the thirty-eighth state to do so and ostensibly passing it. That said,
the passage is only symbolic and will not add (without a prolonged legal battle) the ERA as
the Twenty-Eighth Amendment to the Constitution.

Feminists may have lost the battle over the ERA, but they appear to have won the war.
During the decades since the failed ERA campaign, national civil rights policy in areas
of special concern to women has advanced steadily. In 1972 Congress enacted Title IX
of the Higher Education Act, which prohibits funding for schools and universities that
discriminate against women, including the size of their intercollegiate sports programs.
When, in 1984, the Supreme Court limited the law’s coverage of private groups, ruling

*Public support waned. By 1981 less than half of all voters still endorsed the amendment in those states where
it had not yet been ratified. Gallup poll cited in Jane Mansbridge, Why We Lost the ERA (Chicago: University
of Chicago Press, 1986), 214.

175Chapter 4: Civil Rights

that it prohibited discrimination only in those programs of a private organization that
directly benefited from federal funding, Congress responded by passing, over President
Ronald Reagan’s veto, a law that overturned the Court’s decision.33 And to send a message
to the conservative Court, the Democratic majorities deliberately titled the new law the
Restoration of Civil Rights Act of 1988.

Most significant developments in civil rights policy on employment practices
have occurred during the past two decades, reflecting women’s increasing presence in
the workforce. However measured—whether by percentage of women in the work-
place, or numbers of working mothers, or the share of women who are their family’s
primary breadwinner—the numbers indicate dramatic growth in women’s workforce

As employment issues increased, working women and their legal advocates dis-
covered that the Civil Rights Act of 1964—just as some critics of the ERA had argued—
offered ample legal protections for their discrimination claims. Though drafted
principally to eradicate racial discrimination, the language of Title VII of that law is
unequivocal in its provisions against sex discrimination in the workplace: “[It is] an
unlawful employment practice for an employer . . . to discriminate against any individual
with respect to his compensation, term, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin.” During the past twenty
years, as the Supreme Court has considered the merits of women’s lawsuits charging
sexual harassment by male supervisors, the Court has relied heavily on the 1964 provision
to find that sexual harassment violates the federal civil rights law.

Congress further strengthened employment discrimination claims on various fronts.
The Pregnancy Discrimination Act (1978) and the Family and Medical Leave Act (1993)
prevent firing and demotion during absences for childbirth and family medical emergen-
cies. The Civil Rights Act of 1991 required employers to show that unequal hiring and
compensation practices did not reflect gender discrimination and gave victims the right
to sue for damages. In recent years gender has replaced race at the top of the civil rights
agenda. The courts, Congress, federal agencies, and state legislatures devote a significant
amount of time to policies governing gender relations in the workplace. Today, claims of
sexual discrimination in hiring, pregnancy discrimination in retention and advancement,
and harassment in the workplace constitute more than one-third of all complaints pre-
sented to the EEOC.34 Later in this chapter we also address employment discrimination
claims as they relate to the LGBTQ+ community.

Rights for Hispanic People
According to the U.S. Census Bureau, in 2009 the Hispanic population totaled forty-eight
million, about 16 percent of the U.S. population.* The 2010 census figures indicate that

*African Americans and Asian Americans by comparison constitute 13.6 percent and 5 percent of the pop-
ulation, respectively. “U.S. Hispanic Population Surpasses 45 Million, Now 15 Percent of Total,” U.S. Census
Bureau Population Division, May 2008.

176 Part I: The Nationalization of Politics

slightly less than four in ten Hispanics are foreign born, with most arriving from Mexico
and Central America. Over the years Hispanics have experienced many of the same civil
rights injustices endured by African Americans. As “national origin” became a protected
rights category and as the Hispanic population has grown rapidly, so have the number
of discrimination complaints. In many respects, Hispanic Americans have successfully
enlisted the legal, administrative, and judicial structures constructed to protect African

Yet the civil rights concerns of the Hispanic community are also distinctive. Many lack
the language skills to exercise their civic responsibilities in English. Recognizing this prob-
lem early on, Congress passed the 1970 extension of the Voting Rights Act of 1965, requir-
ing that ballots also be available in Spanish in those constituencies where at least 5 percent
of the population is Hispanic.

Other government actions concerning language have been less accommodating, how-
ever. Whether from discrimination or the expressed difficulty of administering multilin-
gual applications, a few states have adopted English-only laws mandating that most state
business be conducted in English. When an applicant for an Alabama driver’s license chal-
lenged the state’s English-only law as a civil rights violation, a narrowly divided Supreme
Court in Alexander v. Sandoval (2001) ruled that an individual could not challenge
Alabama’s regulation that all driver’s license tests and applications be written in English.
The 1964 Civil Rights Act allowed individual suits only in cases of “intentional discrim-
ination.” The law, according to the majority opinion, left to federal enforcement agencies
the determination of whether English-only rules had an inherently discriminatory out-
come. The decision, in effect, turned this class of civil rights complaints away from the
courts and to political and administrative institutions.

Undocumented, or illegal, immigrants, the largest share of whom are Hispanic, enjoy
fewer civil rights protections than do legal immigrants. But legal immigrants, in turn,
enjoy fewer Bill of Rights protections than do those immigrants who have become citi-
zens. For one, they cannot vote. But their status is more complex and fraught with risk. If
a legal immigrant commits a crime—say, drug possession or driving without a license—
he or she is subject to deportation. Yet how long can the government wait before taking
the person into custody? According to Homeland Security, they can do so anytime. In a
case decided by the Supreme Court the Homeland Security Administration squared off
against the ACLU over whether the government can seize and deport these individuals
years (in some instances, decades) after the case is resolved. The ACLU and the Ninth
Circuit Court of Appeals, which had ruled in favor of the immigrant, argued that such late
seizure and deportation violated the defendant’s due process rights. The Supreme Court
disagreed and ruled that, even if not taken into custody immediately, a noncitizen is not
exempt from mandatory detention and possible deportation.35

This is a nontrivial argument. Recall that the Fourteenth Amendment’s due process
clause explicitly extends basic rights to noncitizens: “No state shall . . . deprive any person
of life, liberty or property, without due process of law; nor deny to any person within its

177Chapter 4: Civil Rights

jurisdiction the equal protection of the laws.” In the next chapter we find the due process
clause having its greatest impact in applying basic privacy and criminal rights protections
to citizens and noncitizens alike.

When it comes to the panoply of government services, eligibility for the benefits
available to all citizens varies from state to state and changes from one year to the next.
This creates great confusion and underuse of benefits even among noncitizens eligible
for them. Take, for example, the food stamp program (today called the Supplemental
Nutrition Assistance Program, or SNAP). In 1996 the law was changed to restrict eligibil-
ity, with few exceptions, to citizens. Then, over time, the law was amended, opening eligi-
bility to the following groups of legal immigrants: Cuban/Haitian entrants, Afghan and
Iraqi immigrants, survivors of human trafficking, lawful residents who had logged ten
years of work, Hmong and Laotian tribe members, immigrant seniors born before 1931,
and the list goes on.

Complicating matters further, five states extended food credits to everyone regard-
less of legal status. The same hodgepodge of eligibility rules can be found for rent and
health subsidy programs. Undocumented immigrants have automatic access to some
federal programs such as Emergency Medicaid, Head Start, and school meal programs.
Moreover, states are required to enroll undocumented children in their K–12 programs.
Finally, unlike legal residents, undocumented immigrants are ineligible to receive Social
Security benefits even if they otherwise qualify by paying their contribution for a suffi-
cient number of quarters.

Adding to the confusion, these policies can change from one administration to the
next. Eligibility for permanent legal status has always emphasized applicants’ self-reliance.
Generally, this precluded participation in those federal programs providing cash subsidies,
compared to services, such as the children’s health program. In 2019 the Trump adminis-
tration tightened eligibility by ruling that use of any government service would demonstrate
dependence on the government, rendering them ineligible for legal status. Nowhere is there
greater uncertainty than for the seven hundred thousand children who entered the United
States illegally with their parents. Failing to win immigration reform from a Republican-
controlled Congress, Democratic president Obama in 2012 created by executive action the
DACA program (Deferred Action for Childhood Arrivals). This would move these chil-
dren to the lowest deportation priority. It allowed them to register and apply for a green card,
permitting them to be legally employable. Two years later, the president again unilaterally
sought to expand eligibility to more than three hundred thousand additional individuals—
specifically, the parents of DACA participants. This time states took the administration
to a federal district court in Texas, which ruled that the president’s order exceeded his legal
authority.* Since then federal district courts appear poised to declare the original program

*The Supreme Court upheld the district court decision in a 4–4 vote in United States v. Texas, 579 U.S. ___

178 Part I: The Nationalization of Politics

Compounding the uncertainty, President Trump announced the end of DACA, but
in the summer of 2019 a federal court ruled that it could not be ended abruptly. So, eligi-
ble immigrant children can still apply for DACA status, work permits, driver’s licenses,
and the like. The Supreme Court agreed. In June 2020 a divided Court (with Chief Justice
Roberts writing for the majority) ruled that the administration’s decision was arbitrary
and capricious.36 Thus, for now, recipients of DACA are safe.

The question is for how long are they safe? In addition, how does the ping pong of the
changing DACA policy affect the daily lives of the more than six hundred thousand recip-
ients (as of March 2020). The short answer is that, since the Court’s June 2020 decision,
uncertainty reigns supreme. For instance, while the ruling made clear that the United States
Citizenship and Immigration Services had to again take DACA applications, it has not yet
done so. In addition, there is uncertainty surrounding whether current DACA recipients will
be able to stay or whether the Trump administration will offer reasons that are constitution-
ally acceptable to deport them. In the end, such uncertainty in terms of educational oppor-
tunities, job prospects, and the like continues—to the detriment of this large class of people.

The extent to which Hispanic Americans succeed in having their complaints
addressed by political and bureaucratic institutions may depend on their ability to max-
imize a fundamental political resource reserved for citizens—the right to vote. One
of every four foreign-born Hispanic Americans is a naturalized citizen.* Added to the
60 percent who are native born, about seven in ten Hispanic people in the United States
are citizens. In the absence of immigration reforms that open the pathway to citizen-
ship, population numbers will continue to overstate the Hispanic community’s potential
political power.

Despite the obstacles facing immigrants with illegal status and other Hispanic peo-
ple, the long-term prognosis for this group’s civic gains is bright. The population is grow-
ing rapidly (shown in Map 4.5), as are naturalization rates. Moreover, the population as
a whole is quite young, with about 40 percent of Hispanic Americans below voting age.
As these young people, most of whom are native-born citizens, become eligible to vote,
this group’s electoral power is bound to surge. Finally, the Hispanic population is distrib-
uted geographically in a manner that promises it political influence. The population’s res-
idential concentration ensures that a sizable number of Hispanic Americans will compete
in Hispanic plurality districts. This bodes well for aspiring Hispanic politicians. Indeed,
from 1996 to 2018 the number of elected Hispanic officials increased from 3,743 to 6,749.
The fact that over 90 percent of these officials who occupy partisan offices are registered as
Democrats harbingers tough times ahead for the Republican Party in those constituencies
where Hispanic Americans constitute a sizable share of the electorate. Moreover, Hispanic
voters reside in some major swing states such as Florida and Colorado, and soon it appears

*To be eligible for naturalization, immigrants must have permanent resident visas for five years or, if married to
a U.S. citizen, have lived in the country for three years.

179Chapter 4: Civil Rights

� MAP 4.5 High Concentration of U.S. Hispanic Americans: A Guarantee of Political

Note: Map shows concentration
of Hispanic population by states.

Percentage by State
25 or more

12.5 to 24.9

5 to 12.4

Less than 5

Note: Map shows Hispanic population as
a percentage of total population in U.S.

Percentage by County
50 or more

25 to 49.9

12.5 to 24.9

5 to 12.4

Less than 5

Source: Data from U.S. Census Bureau, Population Estimates, 2010. Internet release data: March 2011. Percentage by State as of 2009, U.S.
Census Bureau QuickFacts.

they will become pivotal in Arizona and Texas. We revisit Hispanic Americans’ growing
political clout in Chapter 12 on political parties.

LGBTQ+ Rights
The favorable “rights” climate generally has encouraged other groups to come forward—
most prominently, the LGBTQ+ community. But civil rights protections for LGBTQ+

180 Part I: The Nationalization of Politics

people remain a murky area of national policy largely because the public’s views and, con-
sequently, elected officials’ commitments are still forming. Moreover, many claims of the
LGBTQ+ community have not always fit neatly into the statutory provisions or judicial
precedents created during the civil rights era that have over time become the basis for civil
rights protection of other groups.

More than two decades ago observers foresaw the Supreme Court establishing a
beachhead for an expanding gay rights movement when it struck down a voter-approved
amendment to Colorado’s constitution that prohibited state and local governments
from protecting gays and lesbians against discrimination based on sexual orientation.
The Supreme Court ruled that the amendment unconstitutionally denied gay people
equal protection, yet the Court did not actually confer any specific rights to gay people.
Nonetheless, by applying the critical Fourteenth Amendment to gay rights claims, Romer
v. Evans made this group eligible for positive protections if state and local jurisdictions
deemed them appropriate.37

But in 1995 Congress voted down legislation that would have incorporated
sexual orientation into existing employment rights laws. The next year it passed
the Defense of Marriage Act (popularly known as “DOMA”), which not only rejects
same-sex marriage but allows states to ignore these unions sanctioned in other states.
More than symbolism was at stake in this law. By one count, over a thousand federal
rights and benefits are available to married couples, including Social Security survi-
vor’s benefits, Medicaid eligibility, and estate tax exemptions or reductions.38 Thus, by
denying same-sex marriage gay couples were denied benefits enjoyed by different-sex

Despite these setbacks, the gay rights movement has celebrated some major successes.
In 2009, Congress expanded federal hate crimes protections to gays. (The hate crime des-
ignation refers to those provisions of the criminal code that make illegal—or stiffen pen-
alties for—violence directed against individuals, property, or organizations because of the
victims’ race, gender, national origin, or sexual orientation.) The next year it ended
the military’s “don’t ask, don’t tell” policy that permitted service by gays only as long as
they did not disclose their sexual preference.*

In the spring of 2013, the Supreme Court issued a landmark ruling that DOMA vio-
lated the constitutional rights of same-sex couples, but the majority opinion read as
though it left room for the states to set their own marriage rules.39 At that time, thirty states
permitted either marriage or “unions” in lieu of marriage. Two years later the Court revis-
ited the issue, and it decided 5–4 that marriage choice is a fundamental right provided for

*Although as of April 2019, a similar “don’t ask don’t tell policy” was put back into effect for transgender people.
Time will tell whether this policy will remain or be rescinded as the original policy was.

181Chapter 4: Civil Rights

by the Fourteenth Amendment, yet another legacy of Black Americans’ two-hundred-
year pursuit of their civil rights.40

Most recently, the Supreme Court added key protections for people within the
LGBTQ+ community. Specifically, in 2020 it ruled (in three different cases) that “an
employer who fires an individual employee merely for being gay or transgender violates
Title VII of the Civil Rights Act of 1964.”41 These cases are significant because it rules that
the term “sex” applies to people who are gay or transgender. This was a major victory
for the LGBTQ+ community but does not fully answer the extent to which protections
extend beyond employment discrimination. Such questions are left for future Court

Challenging Tyranny
This historical survey of civil rights in America reveals courageous men and women
advocating for their fellow citizens who were suffering injustice. But this history also
reveals that these efforts did not always suffice. True to James Madison’s observation in
Federalist No. 10, the cause of civil rights is advanced only when a large national major-
ity fully takes control of the federal government and challenges tyranny in the states. The
politicians who assembled these broad national coalitions were keen political strategists.
Abraham Lincoln and the Republican Party rode into office advocating “Free Soil, Free
Labor, Free Men,” but not the eradication of slavery. Nonetheless, their political success
allowed them to conduct a costly and bloody war to preserve the Union and abolish

From the 1880s through the 1950s neither party could muster a majority, even
within itself, much less the government, on behalf of civil rights for African Americans.
Consequently, the cause languished and generations of African Americans were doomed
to lives marred by segregation’s shameful regimen. Then, in the 1960s, the Democratic
Party rode the crest of public opinion generated by the civil rights movement. The
1964 election gave Democrats the presidency and huge majorities in both chambers of
Congress. They enacted strong new civil rights policies and enforced them. Advances in
civil rights since those years rest on a firm foundation of laws and institutions created in
response to these historic events.

What does the difficult history of the civil rights movement say about the operation
of America’s political system? The struggle for civil rights has seriously tested the politics
of self-interest. Yet all of the politicians who worked to advance Black civil rights offer a
more confident depiction of political ambition than the one James Madison presented in
Federalist No. 51. Whereas Madison viewed the Constitution as neutralizing the ambition
of politicians and factions, the history of civil rights portrays these same vote-seeking poli-
ticians and political parties as transforming moral justice into public policy.

182 Part I: The Nationalization of Politics


affirmative action 170
Black codes 143
civil liberties 134
civil rights 134
de facto segregation 165
de jure segregation 165
Fugitive Slave Law 140

grandfather clauses 148
hate crime 180
Jim Crow laws 146
literacy test 147
nominating convention 156
poll tax 147
quotas 170

segregation 146
separate but equal

doctrine 148
suffragists 171
Title IX 174
white primary 147


Anderson, Kristi. After Suffrage. Chicago:
University of Chicago Press, 1996. Anderson
assembles all of the available voting and registration
data in providing a detailed and varied history of
the entry of women into American politics.

Branch, Taylor. Parting the Waters: America in the
King Years, 1954–63. New York: Simon & Schuster,
1988; and Pillar of Fire: America in the King Years,
1963–65. New York: Simon & Schuster, 1998. These
two installments of Branch’s detailed political his-
tory of civil rights offer a wealth of instruction to
students of politics and history alike.

Carmines, Edward G., and James A. Stimson. Issue
Evolution: Race and the Transformation of American
Politics. Princeton, NJ: Princeton University Press,
1989. Although these scholars use sophisticated sta-
tistical techniques, they offer an accessible and con-
vincing account of the evolution of the Democratic
Party among politicians and citizens as the party of
civil rights.

Garrow, David J. Bearing the Cross: Martin Luther
King Jr. and the Southern Christian Leadership
Conference. New York: Morrow, 1986. An absorbing
account of the rise of King from the Montgomery
bus boycott to his assassination in 1968.

Keyssar, Alexander. The Right to Vote. New York:
Basic Books, 2000. This highly readable history of
the extension of voting rights in the United States
has emerged as the authoritative source on the

Oates, Stephen B. With Malice toward None: The
Life of Abraham Lincoln. New York: New American
Library–Dutton, 1978. Our favorite Lincoln biog-
raphy has two great virtues: Lincoln is shown to be
a masterful politician, and the gradual emergence
of emancipation as a wartime issue is described

183Chapter 4: Civil Rights


1. What features of government did the southern
states use to prevent the eradication of slavery?
What steps were necessary to remove the obsta-
cles to emancipation?

2. What benefits did Reconstruction produce
for former enslaved people? For northern
whites? What benefits and which groups did
Reconstruction “leave out,” and why?

3. What party did most African Americans sup-
port prior to the 1930s, and why? Why did this
change after the 1930s, and what was responsi-
ble for the change?

4. How did the civil rights demonstrations of
the 1960s change the political calculations of
Democratic politicians? How were the demon-
strations planned strategically to increase pres-
sure on politicians?

5. What challenges and opportunities do
Hispanic Americans face in their current civil
rights efforts? How do these challenges dif-
fer from those Blacks faced in their civil rights

After spending more than twenty years in prison and after sitting for six trials, Curtis Flowers speaks to reporters as he leaves
the Winston-Choctaw Correctional Facility in Louisville, Mississippi. The U.S. Supreme Court struck down his conviction in the
summer of 2019, arguing that the prosecutor had deliberately eliminated Black jurors from participating in Flowers’s trials.
AP Photo/Rogelio V. Solis, File


Civil Liberties5

• Does the existence of a formal Bill of Rights really secure the
liberties for American citizens?

• Does the Supreme Court’s primacy in this area of public
policy imply that democracy requires an institution of
unelected judges for its protection? What other ways of
protecting civil liberties might there be?

• What roles, if any, do Congress, the president, and the
states play in defining civil liberties and balancing them with
security of the nation?

• Because the Bill of Rights does not mention a “right of
privacy,” how does the Supreme Court deem it to be a
fundamental constitutional right?


5.1 Describe what factors
contributed to the
nationalization of civil liberties
in the United States.

5.2 Identify the steps that provided
civil liberties protections under
the Constitution.

5.3 Explain the protections and
limitations of freedom of

5.4 Discuss the role of freedom of
the press in U.S. society.

5.5 Summarize common issues
raised regarding freedom of
religion and the separation of
church and state.

5.6 Describe the different
positions in the debate over
gun rights.

5.7 Identify the four constitutional
provisions for criminal rights.

5.8 Understand how the Supreme
Court came to recognize a right
to privacy.

5.9 Discuss the public policy
implications of protecting civil
liberties and contemporary
debates related to them.

In July 1996, four employees of Tardy Furniture Store in Winona,
Mississippi, were killed in an armed robbery. Three of the four
employees killed were white and one was Black. Curtis Flowers,
an African American man, was identified as the sole suspect in
the murders and was tried six times by District Attorney Doug
Evans. Flowers was brought to trial, and, immediately, race came
to the forefront as the DA sought to remove all potential African
Americans from the jury. This tactic was the focus when Flowers
v. Mississippi (2019) reached the U.S. Supreme Court.

After a six-month search for suspects in this grizzly crime,
Evans charged Flowers with the murders. In the first trial,
Evans prevented five prospective Black jurors from serving.
At the time, over 50 percent of Winona residents were Black
while Montgomery County (where Winona is located) was
predominantly white. Flowers was found guilty, but his
conviction was overturned due to Evans’s misconduct. Not
to be deterred, Evans retried Flowers, again dismissed all five

186 Part I: The Nationalization of Politics

prospective Black jurors, and won a conviction. Unsurprisingly, the conviction was
again overturned. In Flowers III, Evans used all his available peremptory strikes to
remove as many potential Black jurors as possible. This time the jury included one
Black individual. Combined, the first three times Flowers was tried, he was found guilty
and sentenced to death by an almost all-white jury. And, when Flowers appealed each of
these three convictions, they were overturned by the Mississippi Supreme Court based
on Evans’s discriminatory jury selection strategy.

Racial discrimination during jury selection, as in Flowers’s cases, is not uncommon.
A study by the Equal Justice Initiative found that, since 1987 in Alabama, there have
been twenty-five death penalty cases with a racially skewed jury. In fact, within some
Alabama counties, over 75 percent of jury members were struck by prosecutors even
though the jury pool was made up of mostly African American citizens. While the
U.S. Supreme Court addressed this behavior in Batson v. Kentucky, and mandated
nonracial reasons for preemptive jury strikes, loopholes still exist. These loopholes
developed from the Court’s broad language insinuating that reasons for dismissal
need not be persuasive. Eventually in Purkett v. Elem, the Court decided it was the
judge’s responsibility to determine whether deliberate discrimination occurred during
jury selection when a potential juror was dismissed. Still, this step did not prevent
prosecutors with discriminatory tendencies like Evans’s. According to an Equal
Justice Initiative study, prosecutors struck potential jurors based on the neighborhood
they lived in and whether they were single parents. Within the eight southern states
analyzed, over 93 percent of the district attorneys were white.

Not to be deterred, Flowers was brought to trial several more times. However, the fourth
and fifth trials ended in mistrials because the jury deadlocked. On the sixth attempt,
jury selection again seemed racially skewed. Indeed, prospective white jurors were
asked an average of one question by the prosecution whereas Black prospective jurors
were asked an average of twenty-nine questions. This jury (composed of eleven white
jurors and one Black juror) sentenced Flowers to death. Overall, in the six times Flowers
was tried for the murder of the Tardy Furniture Store employees, he was convicted four
times by racially skewed juries.

After the state Supreme Court affirmed Flowers’s fourth conviction (in Flowers VI), he
appealed to the U.S. Supreme Court, arguing that the jury selection process violated his
Sixth and Fourteenth Amendment rights because the prosecutor used his peremptory
challenges in a racially discriminatory manner. The Court agreed to hear the case and
agreed with Flowers that the state had violated Flowers’s rights. In his decision, Justice
Brett Kavanaugh reiterated the importance of Batson in ending racial discrimination
during jury selection. Critics question whether Batson really can be used as a guide
to ending racial discrimination, especially when it was not strengthened in Flowers v.

187Chapter 5: Civil Liberties

Mississippi. Even Justice Thurgood Marshall believed Batson was not strong enough
precedent to end discrimination during jury selection.

Whatever the controversy about Batson as a precedent, Curtis Flowers is now a free
citizen of the United States. On September 4, 2020 the Mississippi Attorney General
(who took over the case after the Supreme Court decision) announced he was dropping
the case against Mr. Flowers. There will not be a seventh trial.

Nationalization of Civil Liberties
Civil liberties claims—of all kinds—dominate today’s newspaper headlines and frequently
lead television evening news programs, and for good reason. Occasionally, an authority,
whether the local police or Congress, acts in such a way that abridges an established free-
dom. Other times, new laws or judicial interpretations expand personal liberties or extend
established civil liberties into new domains. Interestingly, contraction of expansion of lib-
erties is often controversial. This is the case because of the tightrope the government is
obligated to walk between protecting fundamental civil liberties while at the same time
protecting the general welfare of the nation.

Civil liberties have not always been so prominent in the nation’s news and pol-
icy deliberations. For more than a century after the passage of the Bill of Rights, citizens
would have been hard-pressed to find newspaper stories about claims invoking such con-
stitutionally established privileges as freedom of the press, speech, and religion. Many
modern-day civil liberties assertions would have struck the nineteenth-century public
as bizarre. If and when same-sex marriages, physician-assisted suicides, and abortions
occurred in nineteenth-century
America, they were clandestine, and
sometimes criminal, enterprises.

Over the past century, deter-
mination of national civil liber-
ties policy has shifted from nearly
the exclusive jurisdiction of states
and communities to Washington.
Previously, defendants’ rights
amounted to little more than what
the local police and sheriff permit-
ted. In many states local judges,
prosecutors, and legal associations
agreed that exclusively white (and
mostly older) male jurors satisfied
their standards of impartiality and
that an attorney for indigent defen-
dants represented an unneeded

Pro-choice and pro-life activists protest and counterprotest during a demonstration
outside the U.S. Supreme Court as the justices hear oral arguments regarding a
Louisiana law about abortion access.
SAUL LOEB/AFP via Getty Images

188 Part I: The Nationalization of Politics

luxury. Local ministers tendered prayers to school principals, who handed them to teach-
ers and students for morning recitations. Eventually, though, the national government
assumed jurisdiction over defendants’ rights and school prayer. With a new, expansive
interpretation of the Constitution, the courts applied the Bill of Rights to state and local
policies as well as national policy.

The histories of civil rights and civil liberties have much in common. Indeed, the
constitutional amendments conferring full citizenship to people who were previously
enslaved would later provide the Supreme Court with a rationale for the national govern-
ment to enter the civil liberties arena. In both histories the judiciary played a pivotal role
in accepting the claims of individuals’ and groups’ rights over the objections of a local or
national majority. But in other important respects, the history of civil liberties proceeds
down a different path.

As discussed in Chapter 4, the greatest advances in civil rights occurred when a
national majority took up a minority’s cause; so long as the national government remained
silent, slavery and segregation were secure. Although the federal judiciary struck the first
blows against segregation, the rights of African Americans did not substantially improve
until congressional majorities and presidents staked their party’s electoral fortunes on
intervening directly against segregation and Black disenfranchisement. In the end, civil
rights required the sustained efforts of a national majority exerting the full force of the fed-
eral government. By contrast, advances in civil liberties have frequently involved only the
intervention of the federal judiciary to protect flag-burning demonstrators from incar-
ceration, to bar public prayers at school graduations, and to prevent juries from hearing
confessions from defendants before they were read their Miranda rights. These are just
a few examples we encounter in this chapter of the Supreme Court’s acting to enforce the
Bill of Rights even when the preferences of local (and sometimes national) majorities were
opposed to such decisions.

The Bill of Rights Checks Majority Rule
Where the history of civil rights emphasizes the capacity of majorities to control pol-
icy, the history of civil liberties reminds us that the United States is a republic whose
institutions were specifically designed to temper the passions of majorities. The First
Amendment of the Bill of Rights begins with the emphatic and revealing language
“Congress shall make no law” and covers six areas of personal and political liberty. This
opening phrase invited the Supreme Court to eventually interpret and define these
important civil liberties—from freedom of speech to freedom of religion. Appropriately,
the Framers insulated the judicial branch from popular pressures by appointing, with
life tenure, federal judges and Supreme Court justices. The courts “will consider them-
selves in a peculiar manner the guardians of [civil liberties],” the ever-prescient James
Madison predicted. He then added, “They will be an impenetrable bulwark against every
assumption of power in the legislative or executive; they will be naturally led to resist every
encroachment upon rights.”1 Almost 150 years later, Justice Harlan Stone added to this
power with his famous Footnote 4 that outlined the preferred freedoms doctrine.2

189Chapter 5: Civil Liberties

The Bill of Rights was designed to limit the capacity of the government to impose con-
formity costs on those individuals and minorities whose views differ from those of the
majority. By insisting that these first ten amendments be placed in the Constitution, the
Antifederalist critics of ratification sought assurance that these rights could not be easily
removed or abridged. Only if the majority was overwhelming and enduring could it absorb
the high transaction costs required to modify these rights via a constitutional amendment.
Thus, the Supreme Court’s authority to veto Congress and state governments on these pol-
icies (refer to the discussion of judicial review in Chapter 9) places civil liberties under the
protective purview of an institution insulated by design from the pressures of democracy.

The seemingly unequivocal language of the Bill of Rights provides government offi-
cials with little latitude to relax its proscriptions. Yet no amendment has ever been judged
absolute, and some are downright ambiguous. What precisely does the First Amendment
clause “Congress shall make no law abridging the freedom of speech” really mean?
Certainly, Congress cannot bar speech critical of the government (although it did so when
it passed sedition acts in 1789 and 1918). Beyond that, the clause offers little guidance and
has even fostered opposing interpretations of what exactly should be considered speech.
Does the definition include symbolic speech such as burning the American flag? Does it
allow the government to ban speech that could cause violence? Would it permit Nazi orga-
nizations to march in a largely Jewish city outside of Chicago? Similarly, what does the
Eighth Amendment’s prohibition against “cruel and unusual” punishment and of “exces-
sive fines” mean?

Of greater practical significance on these important matters is who decides. Are the
justices of the U.S. Supreme Court endowed with special insights on what types of speech
should be protected and what is an appropriate form of punishment? If not, should states’
citizens decide speech matters and criminal statutes, as is largely the case today? If so, what
did the Framers have in mind when they used such language in the federal Constitution?

Sometimes ambiguity arises from two or more clearly worded constitutional provi-
sions that directly oppose each other. Does protecting potentially hateful speech (a First
Amendment right) about someone’s race, gender, religion, or sexual preference undermine
the Fourteenth Amendment’s right to equal protection of those to whom the speech is aimed?

Other constitutional responsibilities, especially those concerning the country’s col-
lective security, may bring official actions into conflict with individual rights. The pre-
amble to the Constitution charges the national government to “provide for the common
defence,” and Article II designates the president as “Commander in Chief.” Does this pres-
idential responsibility allow the government to restrict freedom of the press during times
of war, as President Abraham Lincoln claimed, or allow the National Security Agency to
collect the phone records of Americans without a court warrant?

Whether liberties are competing with one another or with other parts of the
Constitution, the Bill of Rights represents a Pandora’s box of unanswered policy questions.
The absolute language of the Bill of Rights notwithstanding, civil liberties policy is essen-
tially a line-drawing or boundary-setting activity separating what government actions are
and are not permissible. At times all three branches of the national government grapple with
an issue and come to disagree over where to draw these lines and how brightly to draw them.

190 Part I: The Nationalization of Politics

In a series of rulings beginning in 1990, the Supreme Court started a protracted dis-
agreement over a new standard for whether state and local laws impinged on protected
religious practices. Initially the Court ruled otherwise valid, neutral laws of general appli-
cability that incidentally impinge on a particular religious practice do not violate the First
Amendment’s free exercise clause.3 Seeking to blunt the impact of the decision, religious
organizations of every persuasion that had been exempt from a wide variety of laws, rang-
ing from antidrug statutes to zoning restrictions, lobbied Congress to enact a blanket law
that would effectively exempt them from local regulations.

In 1993 Congress responded with the Religious Freedom Restoration Act, which
voided any law or regulation that “substantially burdened” religious practices if it could not
be shown to serve a “compelling government interest . . . by the least restrictive means.”4
At the bill-signing ceremony, President Bill Clinton noted that it effectively reversed the
Court’s 1990 decision and in his judgment was “far more consistent with the intent of the
Founders than [was] the Supreme Court.” Four years later the Court rebuked Congress and
the president when it struck down the act. In particular, it ruled that Congress had over-
stepped its constitutional authority in applying the new law to the states (as opposed to the
federal government) and the Court holds the sole power to do so. The majority reminded
Congress and the president that “the power to interpret a case or controversy remains in the
Judiciary.”5 Congress promptly reopened hearings and, in 2000, enacted legislation making
it harder for local governments to enforce zoning decisions against religious organizations.

Arguably the Supreme Court still has the last word. Yet it has declined to hear sev-
eral cases related to the Religious Freedom Restoration Act and has let stand lower courts’
decisions overturning government regulation based on the act.* So, even in not decid-
ing a case, the Supreme Court has been able to implement its policy preferences, despite
attempts by Congress and the president to emphasize and restore the prerogatives of reli-
gious organizations. This rare demonstration of these institutions squaring off against
each other contrasted with their usual practice of jointly defining current liberties and
rights. The conflict also illustrates how the Constitution’s language permitted the Supreme
Court to carve out a broad swath of veto authority called judicial review, which we take
up in Chapter 9. Judicial review, the authority to rule on the constitutionality of laws, has
allowed this branch to move to the forefront of civil liberties policy and created a revolu-
tion in rights and liberties, an important theme of this chapter.

Writing Rights and Liberties into the Constitution
The Constitution, as it emerged from the 1787 Philadelphia Convention, did not seri-
ously address civil liberties. Late in the Convention George Mason of Virginia had pro-
posed prefacing the document with a bill of rights (many state constitutions already
had one), but most delegates were skeptical about the need for such an addition (Mason

*In 2006 the Court did unanimously uphold application of the Religious Freedom Restoration Act against the
federal government. Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006). And in
2014 Burwell v. Hobby Lobby Stores cited the law in overturning part of the Affordable Care Act.

191Chapter 5: Civil Liberties

subsequently cited this omission as the reason he turned against the Constitution’s rati-
fication).6 The delegates reasoned that the solution to tyranny lay in correctly designed
institutions that balanced interests through competition. Some delegates also feared that a
list of rights in the Constitution might imply that the federal government had the author-
ity to restrict the freedoms not expressly protected. Alexander Hamilton posed the ques-
tion famously in Federalist No. 84: “Why declare that things shall not be done which there
is no power to do? Why, for instance, should it be said that the liberty of the press shall not
be restrained, when no power is given by which restrictions may be imposed?”

Mason was not the only advocate of a federal bill of rights. Throughout the ratify-
ing process Antifederalists rallied opposition by arguing vigorously that the new con-
stitutional plan flirted with tyranny by omitting explicit protections for the citizenry.
Recognizing a chink in their armor, Madison and fellow supporters of the Constitution
conceded the point and agreed that after its ratification they would introduce at the first
session of the new Congress the amendments required for a bill of rights.

The Constitution actually acquired civil liberties protections in several steps over a
long period of time. The first step was inclusion of the Bill of Rights, which insulated citi-
zens from interference by the federal government in a variety of areas. The second, taken
more than seventy-five years later, after the Civil War, was ratification of the Fourteenth
Amendment, which gave the national government the authority to protect the rights
of former enslaved people. And in a third step, which occurred over the twentieth cen-
tury and continues into the twenty-first, the Supreme Court interpreted the Fourteenth
Amendment to apply the Bill of Rights to the actions of state and local governments.
Judicial scholars commonly refer to this process as incorporation—that is, using the
Fourteenth Amendment to make the Bill of Rights binding on state governments as well as
on the federal government. Thus, the nationalization of civil liberties has not only altered
the balance of power between Washington and the states but also dramatically expanded
the range of protections offered by the Bill of Rights.

The First Ten Amendments
In June 1789 James Madison, elected to the First Congress as a representative from
Virginia, followed through on his commitment during the ratification debate to a bill of
rights by introducing seventeen constitutional amendments. His letters indicate that he
may even have been persuaded of the merit of having these government proscriptions
stated explicitly. Writing to his friend Thomas Jefferson, Madison conjectured that consti-
tutionally guaranteed rights “acquire by degrees the character of fundamental maxims of
free Governments, and as they become incorporated with the national sentiment, coun-
teract the impulses of interest and passion.”7

Madison may have been won over to the Bill of Rights, but he steadfastly believed
that the states and not the national government provided the most fertile soil for tyranny.
Acting on that belief, one of the amendments he submitted to the First Congress lim-
ited state authority. It read: “No state shall infringe the right of trial by jury in criminal
cases, nor the right of conscience, nor the freedom of speech or of the press.” States’ rights

192 Part I: The Nationalization of Politics

advocates, however, were suspicious. Madison’s effort to restrain the states smacked of
another “nationalist” ruse, and they struck it from the list of amendments sent to the states
for ratification. Two years then passed before the required three-quarters of the states rati-
fied the Bill of Rights. Although the Antifederalists lost the ratification fight, they salvaged
a major political concession in the Bill of Rights, their chief legacy to future generations of

In 1833 states’ righters secured a victory in a landmark Supreme Court decision that
governed the Court’s posture and removed civil liberties from the national agenda for
nearly a century. Barron v. Baltimore concerned road repairs made by the city of Baltimore
that caused a buildup of gravel and sand in the area of John Barron’s wharf, impeding
access of deep-bottomed vessels.8 Barron sued the city of Baltimore for violating his con-
stitutionally guaranteed property rights. Pointing out that the Fifth Amendment for-
bade the public “taking” of private property without “just compensation,” Barron argued
that this provision applied to the states as well as the federal government and, therefore,
Baltimore owed him money.

The Supreme Court ruled unanimously against Barron, holding that the Bill of Rights
restrained only the actions of the national government. The whole thrust of the Bill of
Rights, the justices reasoned, was directed exclusively at federal power. In short, the fed-
eral courts could not alleviate the excesses of state and local governments. Handed down
in an era of limited federal responsibilities, the ruling rendered the Bill of Rights virtually
meaningless, for most citizens’ quarrels were with their state governments. If a state’s res-
idents wanted the rights that Barron claimed, they should amend their state constitution,
suggested the Court. The other option—to amend the U.S. Constitution to apply the Bill
of Rights to the states—was left unsaid. Yet achievements on the civil liberties front con-
tinued, and instead of serving as the last word on the subject, Barron today is a historical
relic.* For us, it provides a baseline for measuring the extent to which civil liberties have
become nationalized.

Incorporation via the Fourteenth Amendment
“All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; 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” (emphasis added).

Among the several constitutional amendments proposed during Reconstruction was
the Fourteenth—a text crammed with now-familiar phrases. Although the amendment,

*Reflecting the low salience of civil liberties in the nation’s civic discourse, Andrew W. Young’s 1843 introduc-
tory American government textbook Introduction to the Science of Government devoted fewer than 5 of its 332
pages to the Bill of Rights. This would change in the next century as the doctrine of selective incorporation
evolved and as civil liberties issues began to subsume economic concerns.

193Chapter 5: Civil Liberties

passed in 1868, was intended initially to protect former enslaved people by explicitly
declaring that rights of citizenship were not subject to state controls, over time its sweep-
ing language led other groups to seek its umbrella protections. Yet nearly a half century
of jurisprudence passed before the Supreme Court began to interpret the Fourteenth
Amendment language as requiring the states to adhere to the national government’s Bill
of Rights protections.9 One of the great ironies of American history is that although this
amendment failed to achieve its immediate objective, a century later it extended the rights
and liberties of all citizens in directions unimaginable to its authors.

The first sentence of the amendment provides for a unified national citizenship and
thereby directly contradicts the Court’s assertion in Barron that state citizenship and
national citizenship are separate affiliations. The second sentence, in articulating both the
due process clause and the equal protection clause, states flatly that all persons enjoy the
same civil liberties and rights, which the states cannot deny “without due process of law”
(that is, without following reasonable, legally established procedures) and which the states
must apply equally to everyone. To the modern reader this language seems plainly to say that
states cannot violate the Bill of Rights, but in 1868 this broad interpretation of the Fourteenth
Amendment continued to elude most readers—at least those on the Supreme Court.

In 1873 the Court rejected its first opportunity to incorporate the Bill of Rights into
the Fourteenth Amendment. In the Slaughterhouse Cases a group of disgruntled butchers
sued to invalidate a New Orleans ordinance that gave a single (government run) company
a monopoly over all slaughterhouse business.10 They based their appeal on the Fourteenth
Amendment, arguing that the monopoly denied them the “privileges and immunities”
(that is, the constitutionally protected rights) of citizens. The Court did not agree. By a 5–4
decision it ruled that the monopoly did not violate the Fourteenth Amendment because
the amendment was intended only to protect Black citizens. Moreover, broad application
of the amendment to state policy would “fetter and degrade the State governments by sub-
jecting them to the control of Congress.” With that decision, the Court effectively gutted
the privileges and immunities clause thereby short-circuiting any future use of it as a
vehicle of incorporation.

While the Slaughterhouse Cases were a major victory for states’ power, lawyers turned
to another Fourteenth amendment clause to limit state encroachment on civil liberties.
Specifically, they began to target the due process provision to persuade the Court that the
Fourteenth Amendment applied to the states. Although plaintiffs in these cases consis-
tently lost their arguments as well, most justices agreed that the due process clause might
be construed to protect certain unspecified “fundamental rights.”11

Some twenty-five years into the twentieth century, the Court gingerly began to incor-
porate into the Fourteenth Amendment those provisions of the Bill of Rights dealing
with personal freedoms.* Only gradually did the Supreme Court assume guardianship
of civil liberties by applying piecemeal the various provisions of the Bill of Rights to state

*Throughout the nineteenth century litigants mostly contested property rights, not personal liberties. As a
result, little case law on the subject accumulated.

194 Part I: The Nationalization of Politics

laws and practices. Table 5.1 shows the growth in the number of civil liberties cases the
Court considered. Through this process, called selective incorporation, civil liberties
have been gradually “nationalized.” The Supreme Court first incorporated a provision of
the Bill of Rights into the Fourteenth Amendment’s due process clause in 1897, when it
selected for incorporation the Fifth Amendment’s ban on taking private property without

TABLE 5.1 The Supreme Court’s Civil Liberties Cases: A Major Share of



1946 31 22

1950 20 21

1955 18 19

1960 53 41

1965 32 32

1970 53 43

1975 61 40

1980 42 33

1985 69 45

1990 40 35

1995 29 38

2000 35 44

2005 34 46

2010 33 43

2015 36 45

2018 24 33

2019 11 19

Sources: Adapted from Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments,
6th ed. (Washington, DC: CQ Press, 2016), Tables 2-11 and 3-8. Updates provided by Lee Epstein. Data for 2015,
2018, and 2019 terms adapted from the Supreme Court Judicial Database: Harold J. Spaeth, Lee Epstein, et al.
2019 Supreme Court Database, Version 2019 Release 1. URL: 2019 term data
based on author count of the categories in the notes.

Notes: In the table the term civil liberties encompasses the following issue areas: criminal procedure, First
Amendment, due process, privacy, and attorneys. For 1995 to 2006, the totals on which the percentages are based
do not include interstate relations cases. From 1946 to 1994, the Court heard fifty-five such cases, or an average of
about one per term.

195Chapter 5: Civil Liberties

From the 1920s through the 1940s, the Court took up the First Amendment freedoms
(speech, press, and religion), which remain the rights most carefully protected. At first, the
justices viewed criminal rights as a special class for which incorporation did not apply.*
But then, in the 1960s, the Court also covered most of the provisions of the Fourth, Fifth,
and Sixth Amendments through the due process and equal protection clauses. Today, a
third wave of advances in civil liberties may be forming as judges and politicians explore
the right to privacy.

The Supreme Court’s post-1925 incorporation decisions have served as precedents in
guiding lower federal and state courts and, by offering new opportunities for litigation,
have generated the dramatic growth in the civil liberties docket of the Court. Yet incor-
poration has occurred incrementally, case by case (refer to Table 5.2). Indeed, some
provisions of the Bill of Rights are still not applied to the states: the Third Amendment
prohibition against quartering soldiers, the Fifth Amendment provisions concerning
grand jury hearings, and the Seventh Amendment right to a jury trial in civil cases. The
states retain broad discretion in regulating these areas. Nonetheless, the accumulated
precedents mean that Madison’s vision of the national government as the ultimate guaran-
tor of individual rights has largely been realized.

Judicial Interpretation
The incorporation of Bill of Rights provisions into the Fourteenth Amendment was a
historic development in civil liberties, comparable with the adoption of the Bill of Rights
itself. As we have seen, incorporation occurred not through legislative mandate or the
amendment process but through judicial interpretation. Once this was done, the Supreme
Court could turn to the more substantive issue of whether particular state policies violated
constitutional protections and, if so, what the remedies should be.

Supreme Court justices agree that, as jurists, they are obligated to interpret the
Constitution as objectively as possible. Yet on any particular ruling they frequently dis-
agree—sometimes sharply—over what an “objective” interpretation prescribes. A literal-
ist, finding no language in the Constitution that protects burning of the U.S. flag, might
conclude that the Bill of Rights does not defend this act. Another justice might view flag
burning as a kind of political expression sufficiently close to speech and deserving of First
Amendment protection.

Publicly (e.g., at confirmation hearings), federal judges make clear that, when they
occupy the bench, they must shed all of their personal preferences, ideologies, and par-
tisanship. But evidence reveals that the personal and political ideologies of the nine jus-
tices on the Supreme Court are evident in almost every decision. Consequently, as justices
come and go from the Court, judicial doctrine may change. Nativity scenes deemed objec-
tionable and removed one Christmas may pass constitutional scrutiny and be reinstalled

*Palko v. Connecticut, 302 U.S. 319 (1937). At the same time, the Court also refused to assume federal jurisdic-
tion over a double jeopardy case, finding that protection against double jeopardy was not as fundamental to
“liberty” and “justice” as were the First Amendment guarantees.

196 Part I: The Nationalization of Politics

TABLE 5.2 Cases Incorporating Provisions of the Bill of Rights into the Due Process Clause
of the Fourteenth Amendment


First Amendment

Freedom of speech and press Gitlow v. New York 1925

Freedom of assembly DeJonge v. Oregon 1937

Freedom of petition Hague v. CIO 1939

Free exercise of religion Cantwell v. Connecticut 1940
Establishment of religion Everson v. Board of Education 1947

Second Amendment

Right to bear arms McDonald v. Chicago 2010

Fourth Amendment

Unreasonable search and seizure Wolf v. Colorado 1949
Exclusionary rule Mapp v. Ohio 1961

Fifth Amendment

Payment of compensation for the taking of private

Chicago, Burlington & Quincy R. Co. v.


Self-incrimination Malloy v. Hogan 1964
Double jeopardy Benton v. Maryland 1969
When jeopardy attaches Crist v. Bretz 1978

Sixth Amendment

Public trial In re Oliver 1948
Due notice Cole v. Arkansas 1948
Right to counsel (felonies) Gideon v. Wainwright 1963
Confrontation and cross-examination of adverse

Pointer v. Texas 1965

Speedy trial Klopfer v. North Carolina 1967
Compulsory process to obtain witnesses Washington v. Texas 1967
Jury trial Duncan v. Louisiana 1968
Right to counsel (misdemeanor when jail is possible) Argersinger v. Hamlin 1972

Eighth Amendment

Cruel and unusual punishment Louisiana ex rel. Francis v. Resweber 1947
Payment of excessive bail and fines Timbs v. Indiana 2019

Ninth Amendment

Privacya Griswold v. Connecticut 1965

Source: Adapted from Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice, 9th ed.
(Washington, DC: CQ Press, 2016), Table 3-1.
aThe word privacy does not appear in the Ninth Amendment or anywhere in the text of the Constitution. In Griswold several members of the
Court viewed the Ninth Amendment as guaranteeing (and incorporating) that right.

197Chapter 5: Civil Liberties

the next. Students of jurisprudence have long accepted that justices, like members of
Congress and presidents, can be accurately classified as liberals and conservatives. As a
result, trends in civil liberties tend to reflect the shifting ideological composition of the
Court (depicted in Figure 5.1).

Major versus Peripheral Rights
This chapter focuses on the major rights in the Bill of Rights—that is, those that have been
litigated heavily and developed in detail by the Supreme Court over the past two centu-
ries. However, the rights given detailed treatment in this chapter are not the only rights in
the Bill of Rights. There are other, more peripheral rights—meaning that their parameters
have not been fully developed by the Supreme Court. These peripheral rights include, for
example, the right of assembly under the First Amendment and the Fifth Amendment’s
protection against having private property taken by the government without just compen-
sation (known as the “takings clause”).

Freedom of Speech

Amendment I: Congress shall make no law . . . abridging the freedom of speech.

� FIGURE 5.1 The Supreme Court’s Shifting Ideology on Civil Liberties Cases























t l



Sources: Adapted from Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments, 6th
ed. (Washington, DC: CQ Press, 2016), Table 3-9. Data for 2016–2018 terms adapted from the Supreme Court Judicial
Database: Harold J. Spaeth, Lee Epstein, et al. 2019 Supreme Court Database, Version 2019 Release 1. URL: http://

198 Part I: The Nationalization of Politics

Freedom of speech is essential to representative government and the exercise of individ-
ual autonomy. But what exactly constitutes legitimate and protected expression? And how
does one balance free speech against other rights and claims or against maintaining the
peace or protecting the general welfare?

Generally speaking, the Supreme Court has given a high level of protection to speech
that is expressly political. However, there are limits to even this kind of speech. One of
the most useful ways to make sense of the Court’s free speech jurisprudence is to con-
sider major categories of speech that are excluded from First Amendment protection. The
sections that follow focus on two of the most controversial categories: speech that advo-
cates illegal action and obscenity.

Political Protest and Violence
In a historic decision in 1925 the Court applied the First Amendment’s free speech clause
to actions of state governments.13 The case was brought to the Court by Benjamin Gitlow,
the leader of a radical faction of the Socialist Party who was arrested in New York City at
the height of the Red Scare. Charged with advocating “criminal anarchy” through orga-
nized labor strikes, Gitlow was found guilty in a New York State court. In its review of
his case, the Supreme Court ruled that states could not interfere with the “fundamental
personal rights and ‘liberties’” contained in the First Amendment. The Court thus estab-
lished the Fourteenth Amendment’s jurisdiction over the states, at least when it came to
free speech. But, moving cautiously, the Court continued, “the State cannot reasonably be
required to measure the danger from every such utterance in the nice balance of a jeweler’s
scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst
into a sweeping and destructive conflagration.” So, despite the application of the First
Amendment free speech clause to the states, Gitlow went to prison.

During World War II and the conflicts that followed, the Court persisted in giving the
government the benefit of the doubt during times of crisis. Further, during the Korean
War (1950–1953) the Court upheld the Alien Registration Act of 1940 by affirming the
conviction of eleven top members of the American Communist Party who advocated for
the violent overthrow of the government. After all, the government could not idly watch
traitors hatch a rebellion, the Court argued. Indeed, Chief Justice Fred Vinson, in Dennis v.
United States, altered the interpretation of the clear and present danger test put forward
by famed lower-court judge Learned Hand; this new interpretation became known as the
clear and probable danger test: “In each case [the courts] must ask whether the gravity of
the ‘evil,’ discounted by its probability, justifies such invasion of free speech as is necessary
to avoid the danger.”14 Although this test introduced the idea of probability or likelihood
into the analysis (which in theory was more likely to protect the speaker), Dennis and his
comrades suffered the same fate as Gitlow.

A quarter century later the Court moved full circle in Brandenburg v. Ohio.
Brandenburg involved not a Socialist or a Communist but a member of the Ku Klux Klan.
He was charged with violating the Ohio criminal syndicalism law, which among other

199Chapter 5: Civil Liberties

things made it illegal to advocate crime and violence as a means of accomplishing political
reform.15 Brandenburg spoke at a televised rally in which he used racial slurs and warned
that if the U.S. government continued to suppress the Caucasian race, “it’s possible that
there might have to be some revengeance [sic] taken.” In a unanimous decision, the Court
again altered the clear and present danger test. This time, however, it made it stricter when
the justices announced the imminent lawless action test: the government cannot forbid
“advocacy of the use of force or of law violation” unless the advocacy is “directed to incit-
ing or producing imminent lawless action and is likely to incite or produce such action.”
Although this formulation acknowledged the time element of the clear and present dan-
ger test by using the word imminent, it added two important conditions: first, the speaker
must have the intent to incite others (the “directed to” language), and second, the illegal
action must be likely to occur. These additions offer more protections to the speaker, by
making the government’s case harder to prove.

Although it took the Court several decades to settle on the appropriate test for gov-
ernment regulation of speech that advocates illegal activity, the Brandenburg test cre-
ated a high bar that has endured in broadening the scope of protected speech. Justice
William Brennan summed up the Court’s views in
these cases when he wrote in the flag burning deci-
sion, “If there is a bedrock principle underlying
the First Amendment, it is that the Government
may not prohibit the expression of an idea sim-
ply because society finds the idea itself offensive or

Disturbing Speech
Yet this permissive judicial principle has limits.
Various lower courts have ruled that speech can
go beyond expressions of preference and actually
present a direct threat of violence. Several instances
include publishing a book on how to become a hired
assassin, posting the names and addresses of abor-
tion providers while arguing that they should be
dealt with for crimes against humanity, and posting
on the Internet threats to injure coworkers, a spouse,
the police, a kindergarten class, and the Federal
Bureau of Investigation.17

Sexually Explicit Expression
Historically, from the constitutional Framers to
the modern-day Supreme Court, everyone seems

Members of the Westboro Baptist Church in Topeka, Kansas,
protested at the funeral of a soldier killed in Iraq by carrying
inflammatory signs such as “Thank God for Dead Soldiers.”
AP Photo/Christopher Berkey, File

200 Part I: The Nationalization of Politics

to agree that the First Amendment does not protect obscenity. Where local, state, and
national politicians and judges disagree concerns what kinds of sexual expression, or por-
nography, cross the line over to obscenity. The Supreme Court, Congress, and local law
enforcement, however, have run up against two serious obstacles in banning obscenity.
The first is definitional: where does obscenity begin? Struggling to formulate an objective,
enforceable definition, an exasperated Justice Potter Stewart declared, “I know it when I
see it.”18 The second is the Internet. How does local law enforcement, or even the Federal
Bureau of Investigation (FBI), effectively ban obscene videos posted on the Internet some-
where in the Balkans?

The war on obscenity began in 1873 with the passage of what came to be known as
the Comstock Act. It left to others to define obscenity by declaring simply that the sale
and possession of obscene materials is a federal crime.19 Obscenity simply became what
local officials—from librarians, to movie censors, to beat cops—said it was. In one famous
case in the 1930s, a diligent postal official spotted and presumably read and then seized
copies of James Joyce’s novel Ulysses, claiming it contained “obscene” passages. Some post-
masters judged even anatomy textbooks destined for medical schools as crossing the line.
In deciding whether these and other Comstock enforcement actions were legal, state and
federal courts tended to follow guidelines laid down in British law defining obscenity as
any text or images designed “to deprave and corrupt those whose minds are open to such
immoral influences.”20

The Supreme Court revised obscenity law in 1957 and issued a new doctrine in Roth
v. United States.21 A work was obscene if it was “utterly without redeeming social impor-
tance” and “to the average person, applying contemporary community standards, the
dominant theme of the material, taken as a whole, appeals to prurient interests.” With
this language the Court tried to thread its way between conservative forces calling for
tight local regulation and libertarians who sought to banish the notion of obscenity from
jurisprudence. But every key word in the passage is ambiguous and subject to lenient or
stringent interpretation. Worse yet, the Court did not define any of these concepts. Who
decides the tastes of the “average person”? Which “community’s” standards come into
play? How much obscenity needs to be in the material before it “dominates” the work’s
themes? And while they were at it, lawyers attacking Roth added, just what does pruri-
ent mean? Only as the Court tried to answer these questions did the full extent of the lib-
ertarian victory become clear. Nude pole dancing in bars could be (and was) construed
as a form of artistic expression and hence fell within the First Amendment’s “freedom of
speech” protection.

During the early 1970s an increasingly conservative Supreme Court began retrench-
ing the “anything goes” doctrine of the 1960s. In Miller v. California the Court shifted
primary authority for obscenity policy back to the states and, implicitly, to local govern-
ments.22 Local authorities could ban and otherwise regulate materials “which, taken as a
whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently
offensive way, and which, taken as a whole, do not have serious literary, artistic, polit-
ical or scientific value.” This new standard greatly strengthened local authorities’ hands

201Chapter 5: Civil Liberties


Corporate Free Speech
Prior to the Supreme Court’s 2010 decision in
Citizens United v. Federal Election Commission,
federal law prohibited corporations and unions
from using their general treasury funds to
make direct contributions to candidates. It also
prohibited them from using general treasury
funds to make independent expenditures for
speech that expressly advocated either the
election or the defeat of a candidate (or speech
defined as an “electioneering communication”).
However, corporations and unions were allowed
to establish political action committees, or
PACs, which could receive contributions from
individuals within a union or business and use
the funds to support candidates and political
causes (covered in Chapter 11).

In a 1990 case, Austin v. Michigan Chamber of
Commerce, the Court upheld the prohibition
on political expenditures by corporations and
unions, citing the government’s compelling
interest in preventing “the corrosive and
distorting effects of immense aggregations
of wealth that are accumulated with the help
of the corporate form and that have little or
no correlation to the public’s support for the
corporation’s political ideas.”a

In 2010, in a 5–4 vote, the Court reversed this
policy. In Citizens United, the majority held that
Congress cannot restrict political speech based
on the speaker’s corporate identity. In other
words, Congress cannot single out corporations
(and unions) and thereby discriminate on the
basis of their identity (i.e., their identity as legal
entities instead of individual human beings).
The majority viewed the 2002 McCain-Feingold
campaign finance law’s attempts to regulate the
speech of corporations as essentially viewpoint
discrimination, based on not liking the particular
speaker (and, therefore, that particular speaker’s
message). As a result, the majority held that the
federal law at issue violated corporations’ and
unions’ First Amendment rights.

Justice Stevens’s impassioned dissent ( joined
by Justices Breyer, Ginsburg, and Sotomayor)
questioned the wisdom of the majority’s equating
the First Amendment rights of corporations with
the First Amendment rights of individuals—a
practice that, according to Justice Stevens,
ignores the guarded skepticism with which
the Framers viewed corporations and the fact
that they conceptualized the First Amendment
as protecting the free speech of individuals.
As Justice Stevens derisively put it, “Under
the majority’s view, I suppose it may be a First
Amendment problem that corporations are not
permitted to vote, given that voting is, among
other things, a form of speech.”b

More recently, the same majority extended
corporate rights to include religious freedom.
In Burwell v. Hobby Lobby Stores it ruled that
businesses owned by few members could exercise
their personal freedoms in its policy. In this
case, the owners cited their religious views for
refusing to pay for contraceptives for employees
as required by the Affordable Care Act.

a 494 U.S. 652, 660 (1990).

b 558 U.S. ___ (2010); dissent at 33–34.

David Sipress/The New Yorker Collection/The Cartoon Bank

202 Part I: The Nationalization of Politics

in regulating a variety of sex purveyors such as massage parlors, topless bars, and por-
nographic book and video stores. And this delegation of enforcement authority to the
states helped the Court clear its docket. Since adoption of Miller, the Court has decided
fewer than a quarter of its obscenity cases in favor of First Amendment claims.23

Freedom of the Press

Amendment I: Congress shall make no law . . . abridging the freedom . . . of the

An independent press is indispensable in maintaining a representative democracy.
Without reliable information about the performance of officeholders, citizens would be
hard-pressed to monitor their elected agents. Without the news media, politicians would
find it difficult to communicate with their constituents and to keep an eye on one another.
The role of the news media is so critical, in fact, we devote a full chapter to this “fourth
branch” of government (covered in Chapter 14). The laws and judicial policy regulating
the modern news media reflect the sweeping language of the First Amendment. We take
up the privacy of news sources, government censorship, and publication of classified
information in Chapter 14. Here we consider conflicts between press freedom and indi-
viduals’ privacy and defendant rights.

The Sixth Amendment guarantees that “the accused shall enjoy the right to . . . an
impartial jury of the State.” The importance of an impartial jury is obvious. As for a public
trial, the history of the concept has less to do with prosecuting criminals than with pre-
venting law enforcement officials from meting out arbitrary justice. By exposing the judi-
cial process to public scrutiny and, by implication, the press, the Framers intended to keep
police, judges, and prosecutors in check.

In one famous trial, however, public scrutiny led to public chaos that threatened the
defendant’s right to a fair hearing. In 1954 Ohio osteopath Samuel Sheppard (whose case
inspired the long-running television series and movie The Fugitive) was convicted of
murdering his wife. His trial attracted almost as much news coverage as the O. J. Simpson
trial some forty years later. Yet the Simpson trial, however tumultuous, was a model of
judicial and press decorum compared with the Sheppard proceedings. The testimony
of witnesses could not be heard at times because of the din in a courtroom packed with
reporters. Moreover, the jurors, who were not sequestered, were exposed to the media cir-
cus throughout the trial. Order was eventually restored, but only years after Sheppard’s
imprisonment: in 1966 the Supreme Court found that the “carnival atmosphere” sur-
rounding the trial had undermined Sheppard’s right to a fair day in court, and it reversed
his conviction.24

Does the Sheppard case require a uniform ban on the press in trials involving sensi-
tive issues or famous defendants? Apparently not. In 1982 the Supreme Court overturned
a Massachusetts law that excluded the public from trials of sex crimes involving victims

203Chapter 5: Civil Liberties

under the age of eighteen.25 Although it conceded the value of protecting an underage
victim, the majority argued that the victim’s welfare did not justify the mandatory exclu-
sion of the public. Rather, the question of public access should be decided on a case-by-
case basis.*

Freedom of Religion

Amendment I: Congress shall make no law respecting an establishment of reli-
gion, or prohibiting the free exercise thereof.

Although the First Amendment is best known for its free speech guarantees, it actu-
ally begins with freedom of religion. Many of the early colonies designated official
churches, which believers and nonbelievers alike were forced to attend and support with
their taxes (a practice that continued in some states even after independence). And yet,
by the Revolution, America already was home to a great variety of religious denom-
inations. In Federalist No. 10 Madison identified religious conflict as one of the issues
bound to generate factional struggle.† In fact, Virginia’s religious fights gave Madison the
insight that factional conflict could provide a solid foundation for democracy. One of
Madison’s favorite observations on this score came from Voltaire: “If one religion only
were allowed in England, the government would possibly be arbitrary; if there were but
two, the people would cut each other’s throats; but, as there are such a multitude, they
all live happy and in peace.”26 The religious freedom provision of the First Amendment
prohibits Congress from passing any legislation “respecting an establishment of reli-
gion, or prohibiting the free exercise thereof ” (emphasis added). But like the rest of the
amendment, the establishment of religion clause and the free exercise clause at first
applied only to actions of the federal government. In fact, some states retained laws dis-
criminating against particular religions for years after the Bill of Rights was added to the

Madison and Jefferson both subscribed to the frequently stated view that the First
Amendment erects “a wall of separation” between church and state.‡ But theirs was merely
one interpretation. Separation is not mentioned in the Constitution itself, and it has not
been followed consistently by Congress or the Court. Nor can it be in many instances.
Indeed, the Court has argued that tensions between the free exercise and establishment
clauses may allow government to support religious institutions in various ways.

*A similar strain of judicial reasoning crops up in libel doctrine examined in Chapter 14.
†In private correspondence with Jefferson, Madison stated precisely the same argument in favor of religious
diversity that he later would offer for factions. By letting a thousand denominations bloom, he reasoned, none
would attract sufficient popular support to dominate the others.
‡Jefferson referred to a “wall of separation” between church and state in an 1802 letter written to the Danbury
Baptist Association.

204 Part I: The Nationalization of Politics

Because, during the nineteenth century, the federal government rarely had occasion to
subsidize religious institutions or their ancillary activities, the first real establishment of
religion decision did not come until 1899, when the Supreme Court allowed the federal
government to subsidize a Catholic hospital that was open to all patients.27 In 1947 the
Supreme Court applied the due process clause to the establishment provision and thereby
placed the states under the same restraints as those limiting the federal government.28
As the Court entered this field of state policy, it found some states subsidizing parochial
schools and others offering religious training in public schools. A 1960 survey of school
districts revealed that 77 percent of schools in the South and 68 percent in the East were
conducting Bible readings.29 And throughout the nation most students accompanied the
Pledge of Allegiance to the American flag with a prayer.

The Lemon Test
Over the years, most of the controversial policies triggering establishment arguments
have concerned the various ways states have subsidized private schools. Tuition grants,
textbooks, and school buses have all had their day in court. The most far-reaching of these
cases was Lemon v. Kurtzman (1971), in which the Court specified three conditions every
state law must satisfy to avoid running afoul of the establishment prohibition when pro-
viding funding to sectarian schools (although it was used in nonfinance cases as well):30

1. The statute in question “must have a secular legislative purpose.”

2. The statute’s “primary effect must be one that neither advances nor inhibits

3. The statute must not foster “an excessive government entanglement with religion.”

If any of these conditions are violated, the policy fails the Lemon test and the law is
void. The Court was trying mightily to construct clear doctrine, but with highly subjective
criteria such as “primary” and “excessive” it succeeded better perhaps in describing how
justices thought these issues through than in identifying to the states those policies that
would satisfy the Court’s interpretation of the establishment clause.

The problems inherent in applying Lemon soon became evident in the highly incon-
sistent decisions that followed its adoption. For example, sometimes the federal courts
applied the test to dismantle nativity scenes on public property; at other times judges
enlisted the same guidelines to approve official displays of nativity scenes as a celebration
of the historic origins of Christmas.31

The Supreme Court viewed prayer at school football games and convocation exercises
as clear violations of the Constitution but had no problem with the devotions that begin
each day’s business in Congress. In the judgment of one constitutional scholar, the vague,

205Chapter 5: Civil Liberties

three-pronged Lemon test inspired judges to engage in reasoning “that would glaze the
minds of medieval scholastics.”32

Testing a Policy’s “Neutrality”
By the 1990s the Lemon test was fading from establishment decisions as the justices
increasingly tested a policy’s neutrality.33 They used the neutrality test not so much to
prevent favoritism among religious groups as to root out policies that preferred religious
groups generally over nonreligious groups engaged in a similar activity. Tax credits for
religious school tuition were permissible if they also were available for secular, private
instruction and religious organizations could meet on public school property as long as
they observed the same access rules governing any other school club.

In 1994 the Supreme Court applied the emerging neutrality doctrine in Board of
Education of Kiryas Joel Village School District v. Grumet.34 A sect of Orthodox Jews in
upstate New York persuaded the state legislature to carve out a new, publicly financed
school district that would include only their community. Because students from that dis-
trict who had no special needs already attended a private religious school, the new dis-
trict would offer only special education classes for the community’s disabled children.
The Court ruled, however, that creation of this school district breached the rule of neu-
trality and was thus unconstitutional: “The district’s creation ran uniquely counter to state
practice, following the lines of a religious community where the customary and neutral
principles would not have dictated the same result.” Since then the Court has followed
its neutrality rule in permitting public funding of mandated special education courses in
parochial schools; in allowing state subsidies for some instructional materials in private
schools, such as school computers and library resources; and in upholding as constitu-
tional a school voucher program that allowed thousands of Cleveland, Ohio, students to
attend religious schools.35 This last decision (Zelman in 2002) rekindled a hot political
issue championed by President George W. Bush in the 2000 election but left out of his No
Child Left Behind legislation in order to garner support for his education reforms. Since
the Court removed this legal issue, vouchers have become more popular. Today twenty-
nine voucher programs exist in eighteen states. The issue continues to garner interest in
Washington and many state capitals as a way of exposing public education to the discipline
of market forces—that is, giving students and their parents the freedom to choose schools.

Just as the neutrality standard appeared to allow a host of subsidies for religious educa-
tion, a 2004 Supreme Court decision made a critical distinction between funding religious
institutions for their secular activities and funding religious training. The issue involved
a college student in Washington State who received a state scholarship to help finance
his undergraduate education. After he declared his intention to major in religious stud-
ies designed to train him to become a minister, however, the state withdrew the scholar-
ship. This was standard practice in thirty-seven states at the time, and in a 7–2 opinion the
Court found the state’s decision appropriate.36

206 Part I: The Nationalization of Politics

Although the Court continues to sustain the neutrality standard as the governing
establishment doctrine, some question whether it has achieved the intended result. Critics
charge that the Court has dismantled the chief barrier to expanded public subsidies for
church-sponsored education, which some states have been eager to provide. With President
Trump’s appointment of three socially conservative justices during his term, the traditional
“wall” of preventing outright tax support for religious-based elementary and secondary
education has gotten lower. For example, during the 2019 term, in Espinoza v. Montana
Department of Revenue, the Court held that if states provide students with scholarships to
attend private schools, those scholarships may be used to attend religious schools.37

School Prayer and Bible Reading
None of the establishment issues has aroused more enduring enmity among religious con-
servatives than the Supreme Court doctrine banning prayer and Bible readings in pub-
lic schools. This issue is, arguably, the only real wall separating church and state not yet
breached by the Supreme Court. In Engel v. Vitale (1962) the Court ruled the following
New York State–composed prayer unconstitutional: “Almighty God, we acknowledge
our dependence on Thee, and we beg thy blessings upon us, our parents, our teachers,
and our country.”38 The next year it invalidated Bible readings in public schools.39 Over
the years these decisions and the later ones that bolstered them have angered many
Americans. Indeed, neither a majority of the public nor those politicians who periodi-
cally ask for people’s votes have ever been won over to the Supreme Court’s point of view.
Congress has periodically considered a constitutional amendment allowing school prayer,
most recently in 1998. Each time, however, proponents have attracted majority support
in Congress but have failed to win the two-thirds support necessary to send an amend-
ment to the states.40 In the absence of a national policy alternative, states have continued to
pass laws trying to circumvent or accommodate the federal courts, but with no success. In
1985, for example, the Court ruled unconstitutional an Alabama state law that mandated
a moment of silence at the beginning of the school day.41 Seven years later it found invoca-
tion and benediction prayers at graduation equally objectionable.42 Moreover, in a throw-
back to the days of school desegregation in the 1950s and early 1960s, many local school
districts throughout the South have simply ignored the federal courts’ instructions on
school prayer. Three years after the 1963 unequivocal banning of Bible reading, one study
revealed that only one Tennessee school official of the 121 interviewed even bothered to
claim compliance with the Court decision.43 In 1997 a federal district judge found school
prayers to pervade school life in Alabama despite the federal courts’ efforts to forbid these
practices. When the judge appointed a “monitor” to ferret out classroom violations of
his order to end prayers, the Alabama governor denounced his action as tantamount to
employing “secret police.” Nearly 500 of the 636 students in the affected district, as well as
students in other states, protested the judge’s ban by walking out of class.44 This is just one
example of the judiciary’s inability to enforce its own decisions, which is discussed more
fully in Chapter 9.

207Chapter 5: Civil Liberties

Until recently school prayer seemed to
be an exception to the rule that the Court’s
policy decisions do not stray far beyond
the bounds of citizen opinion. In 2001,
however, a federal appeals court turned
away a challenge to a Virginia law per-
mitting a moment of silence at the start of
each class day in the state’s high schools.
And later in the year, the Supreme Court
refused to review the decision, thereby let-
ting it stand as state policy. So although it is
safe to assume that these issues will remain
contentious and that the judiciary will
revisit them frequently, the courts might
have found a way to accommodate the
states and public opinion without seriously
undermining the establishment clause.

Free Exercise
The case law delineating the free exercise doctrine is relatively clear and simple when
compared with the tortured history of religious establishment cases. The doctrine’s
incorporation into the Fourteenth Amendment began on a spring day in 1938, when the
Cantwells, a family of Jehovah’s Witnesses, drove into New Haven, Connecticut, to pros-
elytize their faith and solicit donations. Jehovah’s Witnesses believe that each member of
the church, as one of its ministers, is obligated to spread the gospel of salvation. Some local
residents, however, objected to the Witnesses’ intrusion on their privacy and called the
police, who arrested the Cantwells for soliciting money door to door without a permit.

Ruling on this case in 1940, the Supreme Court decided for the first time that First
Amendment protections of free exercise of religion were incorporated in the “fundamen-
tal concept of liberty embodied” in the Fourteenth Amendment. Connecticut’s regulation
of financial solicitation by religious groups, the Court ruled, represented an unconsti-
tutional “censoring” of religion.45 The justices concluded that “in spite of the probability
of excesses and abuses, [religious] liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of citizens of a democracy.”

What makes many free exercise cases difficult is that rarely is a particular religious
practice specifically targeted by a law. Instead, many generally applicable laws—laws
passed to solve some general societal problem and applied to everyone—interfere with
some group’s religious practice (such as rules requiring compulsory education up to a
certain age). For years, when the Court was confronted with these situations, it generally
asked whether the government had a compelling interest and then attempted to balance
that interest against the degree of infringement on the individual’s free exercise of religion.

Can a baker refuse on religious grounds to bake a wedding cake for a gay
marriage? The state of Colorado said no, but the U.S. Supreme Court ruled
that the state had behaved arbitrarily. Yet it did not actually rule whether in
the end the baker would or would not have to bake that cake.
REUTERS/Mario Anzuoni

208 Part I: The Nationalization of Politics

This all changed with the Court’s decision in Employment Division v. Smith (1990).
This case involved two Native American church members who were dismissed from their
drug counseling jobs for ingesting peyote (a hallucinogenic derived from cactus) as part
of a religious ceremony.46 When the state of Oregon denied their request for unemploy-
ment benefits, the church members sued the state for infringing on their free exercise of
religion. In a surprising 5–4 decision, the Court ruled that otherwise valid, neutral laws
of general applicability that incidentally impinge on a particular religious practice do not
violate the First Amendment’s free exercise clause. As discussed earlier in the chapter,
Congress responded by passing the Religious Freedom Restoration Act, part of which has
been upheld by the Court and part of which has been found unconstitutional.

Still, as the Court reiterated in 1993, if a law is not neutral (in other words, if the law
targets a specific religious practice), “it is invalid unless it is justified by a compelling inter-
est and is narrowly tailored to advance that interest.”47 As a result, the Court struck down
a Hialeah, Florida, city ordinance after determining that the real purpose of the law was
to stop the animal sacrifice performed by a Santeria church as part of a religious rite. Most
recently, the Court made clear the exemption to employment discrimination for religious
reasons.48 Specifically, religious schools are free to terminate any employees they deem as

Both the free exercise and establishment issues spark competing rights claims that
require careful balancing from courts. The problems are rooted in the language of the
First Amendment. Does “free exercise” extend to behavior that imposes costs on the
larger community—whether it be drug use, proselytizing, or disregard of local zoning
ordinances? Does the prohibition against establishing a state religion cover moments of
silence, church-sponsored school clubs, or overtly religious Christmas displays? As the
Supreme Court’s wavering decisions reveal so clearly, there is no single “correct” answer
to the questions raised by the First Amendment’s guarantee of religious freedom. The
courts, politicians, and public, then, have ample room to decide for themselves and thus
to disagree.

Gun Rights

Amendment II: A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.

Until recently, the Second Amendment could have been placed in the category of periph-
eral rights—not because the right to own a gun is less important to many Americans than
rights such as free speech but because for over two hundred years the Supreme Court
interpreted the cited clause as a collective good rather than a personal freedom. Easily the
Second Amendment presents the most ambiguous language in the Bill of Rights. When
Congress debated this amendment, the Revolution against the autocratic British regime
was still a fresh memory. Indeed, the representatives expanded on this theme in the

209Chapter 5: Civil Liberties

historically inconsequential Third
Amendment banning the govern-
ment from commandeering private
homes to garrison troops. Most his-
torians and judicial scholars have
read the congressional deliberations
and the wording of the amendment
itself as guaranteeing the right of
local militias to bear arms—a kind
of collective good. What “good” it
was intended to provide is some-
what vague. A modern reading and
one preferred by pro-gun advocates
has it represent the people’s ultimate
check against government tyranny.
Yet a careful reading of the history
suggests that the “State” refers actu-
ally to states’ right to maintain mili-
tias (a forerunner of the national
guard) to counter insurrections such as the Whiskey Rebellion.

Although judicial decisions on the Second Amendment consistently read the amend-
ment as guaranteeing this limited collective right, this opinion had never wholly become
a national consensus. And in fact, over the decades the collective good interpretation had
rarely been litigated—perhaps as few as five cases in the first two centuries of the Republic.

Over the years a number of resourceful interest groups and elected officeholders have
taken exception to this collective good interpretation. The National Rifle Association and
others vigorously advanced the interpretation that the amendment guarantees an individ-
ual right to own a gun. Until 2008, the last word from the Court dated to 1939, when the jus-
tices upheld Miller’s conviction for possessing a sawed-off shotgun, arguing that such a gun
had no reasonable relationship to a well-regulated militia. This rationale seemed to deny
the unregulated individual right to bear arms. This line of interpretation would change in
2008, however, when the Supreme Court issued its most important Second Amendment
ruling to date: District of Columbia v. Heller. In a bitterly divided 5–4 opinion split predict-
ably along conservative-liberal lines, the majority explicitly adopted the individual right
interpretation of the Second Amendment. To do so it rejected the long-standing interpre-
tation that the phrase “to keep and bear Arms” was limited to weapons used in military ser-
vice.49 Specifically, the Court held that Washington, DC’s, absolute prohibition of handguns
used for self-defense in the home was unconstitutional under the Second Amendment.

Two years later the Court issued another watershed Second Amendment ruling,
holding that the Fourteenth Amendment incorporates the Second Amendment right
announced in Heller to keep and bear arms for the purpose of self-defense.50 As a result, the
Court struck down a Chicago law that effectively banned handgun possession by almost all

Protestors descend on the Michigan State Capitol in May 2020 to redress their
grievance that the government should reopen the state as soon as possible, even
in light of the COVID-19 pandemic.
Gregory Shamus/Getty Images

210 Part I: The Nationalization of Politics

private citizens who reside in the city. These two major decisions (with a bare five-member
majority, consisting of the Court’s conservative justices) have changed the political game
when it comes to Second Amendment rights and have shifted the final word on gun rights
from Congress, state legislatures, and municipalities to the Supreme Court. Despite this
change, states and localities continue to pass legislation meant to restrict gun possession.
One example is a New York City regulation that restricted where owners could take their
guns. The Court chose not to decide the case as the city ultimately altered the law.

In the short term, what this really means is that the lower federal courts are left to
define the parameters of Second Amendment rights, without much guidance from the two
Supreme Court decisions on the subject. As one appeals court judge mused, “There may
or may not be a Second Amendment right in some places beyond the home, but we have
no idea what those places are, what the criteria for selecting them should be, what [level] of
scrutiny might apply to them, or any one of a number of other questions.”51 By one count
over one thousand Second Amendment cases have been filed since Heller, with lower
courts upholding a variety of restrictions including those based on age, whether someone
is a felon, and whether someone has a misdemeanor for domestic violence. Throughout
this period, the Supreme Court has refused to accept cases challenging restrictions on fire-
arms in public, challenges to restrictions of possession of machine guns and other military
weapons, and challenges to local requirements that guns be registered and associated fees.

Legislative Action and the Second Amendment
In 1994 Congress passed a ban on the sale of newly manufactured assault weapons. But
the law expired ten years later, and all efforts to extend it have failed in Congress. Even
though the Supreme Court may have barely opened the door to gun rights, the political
impasse in Washington created a policy vacuum that has allowed some states to rush in
to ensure the right of gun ownership. The result has been a flurry of state legislation over
the past decade or so covering such issues as gun registration, background checks, open
and concealed carry of handguns and long guns, and assault weapons restrictions. Some
states, such as California, have passed restrictive laws, whereas others, such as Texas, have
passed minimal conditions on the possession and open carrying of guns.

The series of mass killings at schools such as Columbine High School, Virginia Tech,
and Sandy Hook Elementary School and in San Bernardino, Orlando, and Las Vegas has
fueled a demand for action. And yet these same events have caused many Americans
to favor gun ownership for protection. The first mass shooting, which occurred at
Columbine High in 2000, triggered an outpouring of support for tighter gun laws, but
Figure 5.2 shows that subsequent, similarly horrendous shootings have barely moved
the needle in public opinion. What did make a difference was the Supreme Court’s Heller
decision. Figure 5.2 shows support for gun rights rising to about half of survey respon-
dents and staying there.

Public opinion has not been altogether static since 2008, however. Republicans
have embraced the individual right interpretation to the Second Amendment, whereas

211Chapter 5: Civil Liberties

Democrats have not. Figure 5.2 documents the steady rise of gun control as a highly parti-
san issue—in reality, a litmus test that politicians from both political parties must answer
correctly to secure their party identifiers’ support. Several reasons for this partisan divide
can be found in the composition of party supporters. As women have drifted toward
Democrats, they have shifted that party’s stance more squarely in favor of gun control.
Similarly, the growing urban-rural divide in party identification contributes to the widen-
ing gulf between partisans in both the electorate and in Washington.

The debate over the right to bear arms was front and center during the debate over
how best to handle the COVID-19 pandemic during 2020. When Michigan governor
Gretchen Whitmer extended a stay-at-home order and did not quickly allow Michigan
businesses to reopen, to stop the spread of the virus, protestors descended on the capital to
voice their displeasure. Many did so, however, while openly carrying arms. Michigan is a
right-to-carry state, and protestors believed it was their right to take back the government
from what they considered tyrannous decisions by the governor.

Criminal Rights
“The history of liberty,” remarked Supreme Court justice Felix Frankfurter, “has largely
been the observance of procedural safeguards.”52 Nowhere is this insight more applicable

� FIGURE 5.2 The Public’s View of Gun Rights

Public remains closely divided on controlling guns and protecting gun rights

% saying it is more important to . . . % saying it is more important to protect
the right of Americans to own guns






’00 ’02 ’04 ’06 ’08 ’10 ’12 ’14 ’16 ’19 ’00 ’02 ’04 ’06 ’08 ’10 ’12 ’14 ’16 ’19




56 56

81 80


20 22




52 53

46 4742


Control gun

Rep/Lean Rep

Dem/Lean Dem

Protect the right of
Americans to own guns

Source: Pew Research Center (2019). “Share of Americans Who Favor Stricter Gun Laws Has Increased since 2017.” https://www.pewresearch

212 Part I: The Nationalization of Politics

than to criminal rights. In fact, an article on world affairs in today’s newspaper is highly
likely to confirm Frankfurter’s comment. Leaders in nondemocratic societies often throw
their adversaries in prison on trumped-up criminal charges as an easy way of quelling

But procedural safeguards remove the criminal process from politics and protect the
individual citizen from the raw power of the state. The Framers had firsthand experience
in this area: Britain had used criminal statutes and prosecutions in its attempts to tighten
its political control over the colonies. The wary drafters of the Bill of Rights carefully and
systematically constructed barriers to arbitrary law enforcement.

� FIGURE 5.3 The American Criminal Justice System

Stage Governing Amendmenta

Reported or suspected

Investigation by law
enforcement officials

Fourth Amendment search and seizure rights

Fifth Amendment self-incrimination clause

Arrest Sixth Amendment right to counsel clause


Decision to prosecute

Pretrial hearings (initial
appearance, bail hearing,
preliminary hearing,

Fifth Amendment grand jury clause

Sixth Amendment notification clause

Eighth Amendment bail clause

Trial Fifth Amendment self-incrimination clause

Sixth Amendment speedy and public trial, jury,
confrontation, and compulsory process clauses

Sentencing Eighth Amendment cruel and unusual punishment clause

Eighth Amendment excessive fines clause

Appeals, postconviction

Fifth Amendment double jeopardy clause

Source: Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: A Short Course, 8th ed.
(Washington, DC: CQ Press, 2021), Table VI-1, 550.

aThe right to due process of law is in effect throughout the process.

213Chapter 5: Civil Liberties

Public safety and law enforcement are quintessentially state and local responsibilities.
This fact probably explains why the Bill of Rights provisions were among the last to be
incorporated into the Fourteenth Amendment and applied to all levels of government.
Until the 1960s the Supreme Court applied the Fourteenth Amendment’s due process
clause to defendants only in egregious instances of state misconduct, such as a 1936
case in which a suspect was tortured to near death before he confessed.53 Clearly, for a
long time a majority of the Court wanted to avoid overseeing the state criminal justice
system. Even when it did accept the argument that a particular constitutional provision
applied to the states, the Court hesitated to impose the rules and standards used in fed-
eral criminal cases.

The public has disapproved of the incorporation of criminal rights into the Fourteenth
Amendment; law-abiding citizens and their representatives tend to sympathize more
with the victims of crime than with the accused. When, in 1972, a national survey asked
Americans whether the courts treat criminals “too harshly” or “not harshly enough,” two-
thirds said the latter. By 1994 this figure had risen to 85 percent, but perhaps reflecting
the effects of more restrictive decisions in recent years and longer sentences, it dropped to
78 percent in 1996 and to 64 percent in 2008.54 Today criminal rights remain one of the
most controversial aspects of modern civil liberties policy.

Elected officeholders have responded to these opinions and controversies by paying
closer attention to the legal opinions of the men and women they appoint and confirm to
the federal judiciary. Although criminal rights have not been “unincorporated” or sharply
curtailed, vigilant recruitment appears to have brought criminal rights court rulings into
closer alignment with the preferences of the American public. As a consequence, Supreme
Court decisions have, on average, become less supportive of criminal rights than they were
during the 1960s, when major policy changes occurred in this field (depicted in Figure 5.4).

Fourth Amendment: Illegal Searches and Seizures

Amendment IV: The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be vio-
lated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.

The Fourth Amendment is specific and detailed, but at times efforts to determine what
constitutes illegal searches and seizures and what remedies are available to defendants
when police and prosecutors go too far have occupied much of the Supreme Court’s time.
Attempts to answer these two questions have generated two distinct sets of legal doctrine
that continue to evolve with the changing ideological disposition of the Supreme Court
and the ever-growing capacity of technology to monitor both our behavior and police
enforcement actions.

214 Part I: The Nationalization of Politics

For centuries the principle was commonly asserted and eventually accepted that
unless the police convinced a judge to give them a search warrant, the home was indeed
a “castle” from which ordinary citizens could escape government intrusion. Indeed,
colonists’ vivid memories of British official intrusions at the advent of the Revolution
probably guaranteed the Fourth Amendment’s place in the Bill of Rights. Until recently
the Supreme Court followed this principle—almost literally. The Court deemed out of
bounds only police investigations that violated an individual’s private physical space.
Accordingly, the Court ruled that phone wiretaps performed without search warrants
were legal and that any evidence obtained in this way could be introduced in a trial. The
first real limitations on search and seizure “beyond the domicile” came not from the judi-
ciary but from Congress, which, in setting up rules and administrative structures for reg-
ulating broadcast and telephone communications (the federal Communications Act of
1934), added language proscribing most police use of wiretaps.

Not until 1967 did the Supreme Court start expanding the domain of privacy and lim-
iting police use of technology to conduct warrantless searches. Following accepted proce-
dures, FBI agents placed a listening device outside the phone booth used by a suspected
bookie, Charles Katz. They were rewarded with incriminating evidence that helped

� FIGURE 5.4 The Supreme Court’s Criminal Rights Decisions in Favor of the






















Source: Adapted from Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments,
6th ed. (Washington, DC: CQ Press, 2016), Table 3-9.

215Chapter 5: Civil Liberties

convict Katz. The case did not end there, however, because his lawyers challenged the
wiretap, arguing that a telephone booth is a “constitutionally protected area.”

In Katz v. United States the Court agreed, breaking new legal ground in two respects.55
First, the Court did not limit protections to discovery of physical evidence, and second, it
indicated that even searches not involving “physical penetration” of an individual’s space
might be illegal. This decision opened a vast realm of possibilities, as reflected in the thou-
sands of legal challenges and dozens of Supreme Court decisions that Katz spawned. In
2001 the Court ruled that police cannot use a thermal imaging device to perform a blanket
sweep of neighborhoods to look for basement marijuana fields.56 In 2014 it required law
enforcement to obtain a search warrant before opening a suspect’s cell phone messages.57
This and other recent decisions have helped clarify the Court’s approach to search and
seizure cases.

Despite some limits, the Court generally allows searches and seizure of evidence with-
out a warrant under the following circumstances:

• During a valid arrest (after all, the police must be sure those they arrest do not
remain armed)

• When searching to ensure that evidence is not lost

• When searching with the consent of the suspect

• When searching occurs in “hot pursuit” of a suspect in the act of committing
a crime

• When seizing evidence that is in plain view

• When searching places other than residences that the Court has decided merit
low protection (such as automobiles)58

One of the most difficult questions the Court has faced is what should be done with
illegally obtained incriminating evidence. The Court grappled with this question as early
as 1914, when it decided that such material must be excluded from consideration by the
trial judge and jury. But as late as 1949 the Court resisted incorporating this exclusion-
ary rule, reasoning that if police act improperly, the accused person could complain to
police superiors or file a private lawsuit (the main recourse provided by British law). Not
until the early 1960s did an increasingly liberal Supreme Court, under the leadership of
Chief Justice Earl Warren, turn to incorporation of criminal rights. In Mapp v. Ohio (1961)
the Court finally extended the exclusionary policy to the states.59 Unlike its decisions on
obscenity or religious establishment, the Court’s ruling on the exclusionary rule was clear
and simple: improperly obtained evidence was considered “fruit of the poisonous tree”
and therefore could not be admitted at any trial.

The Court majority must have believed it created an absolute standard. Over the
next few years it and lower federal courts unflinchingly threw out improperly acquired
evidence, no matter how incriminating. The public grew outraged. But as membership

216 Part I: The Nationalization of Politics

on the Court became more conservative, the seemingly absolute standard set down in
Mapp became more ambiguous and flexible. In two 1984 cases the Court ruled that if
law enforcement officers made a “good faith” effort to abide by established procedures,
the evidence retrieved could still be introduced,60 and in 2006, the Court ruled that the
exclusionary rule does not apply to evidence obtained after police failed to follow properly
the “knock and announce” rule required by the Fourth Amendment.61 The Court has also
ruled that improperly acquired evidence is admissible if one could reasonably assume it
would have been discovered anyway. For example, in Nix v. Williams, the body of the mur-
der victim was lying exposed in a field and therefore likely to be found by the police even
without a warrant.62

In its first case (Utah v. Strieff) of exclusionary evidence in five years, the Court in
2016 weakened the rule further in finding that evidence gathered during a legal arrest is
admissible, even though the initial contact with the suspect was inadvertent and probably

Although the exclusionary rule has existed for decades, modern technology intro-
duces new Fourth Amendment issues. In 2012 the Supreme Court launched a series of
decisions that increasingly scrutinize police use of cell phone and GPS technology for
monitoring citizens’ behavior. It ruled unanimously that the police could not place a GPS
tracking device on a suspect’s vehicle without a warrant.63 For four of the justices, the case
seemed to turn on the fact that the vehicle was on private property at the time of place-
ment. But others, such as Justice Alito, seemed to be concerned more broadly about
expectations of privacy in the digital age, claiming that individuals did not expect that law
enforcement would “secretly monitor and catalogue” their movements.64 Six years later,
in Carpenter v. United States (2018), the Court made a similar ruling about cell phones. In
this case the majority ruled that warrantless seizure and search of cell phone records that
reveal the location and movements of the owner violates the Fourth Amendment.65

One thing is certain: this will not be the last case the Court decides involving modern
technology and the gathering of electronic information about individuals. As we discuss
later in the chapter, concerns about informational privacy are not limited to “search and
seizure” issues.

Fifth Amendment: Self-Incrimination

Amendment V: No person . . . shall be compelled . . . to be a witness against

This key provision of the Fifth Amendment applies to testimony in a trial and to any state-
ment made by a defendant awaiting trial, including confessions. Despite this clear protec-
tion, law enforcement officials have always preferred obtaining confessions to preparing
for trials. The alternative, gathering evidence and building a case, can be time consum-
ing and risky. Thus, as late as the 1960s, many police departments throughout the nation

217Chapter 5: Civil Liberties

routinely induced confessions by beatings, threats, and severe deprivations. Moreover,
tricks of the trade, including placing codefendants in a prisoner’s dilemma situation,
induced some of the accused—even some who were innocent—to confess. These tac-
tics were used despite the bedrock principle that accused criminals are protected from

In 1964 the Supreme Court took the first step toward eradicating these abuses by
applying the Fifth Amendment to the states.66 It followed that decision with a contro-
versial ruling two years later in Miranda v. Arizona, aimed at protecting suspects from
self-incrimination during the critical time between arrest and arraignment.67 In Miranda
the Supreme Court held that police custody is inherently threatening and that confes-
sions obtained during that period can be admitted as evidence only if suspects have
been advised of their constitutional right to remain silent. Moreover, defendants must be
warned that what they say can be used against them in a trial, informed that they have a
right to have a lawyer present for any statements (and that the state will provide an attor-
ney if they cannot afford one), and told of the right to end the interrogation at any time.
Since this decision, the following waiver has become standard operating procedure for
police and sheriffs all across the country when making arrests.



You are under arrest. Before we ask you any
questions, you must understand what your
rights are.

You have the right to remain silent. You are
not required to say anything to us at any time
or to answer any questions. Anything you say
can be used against you in court.

You have the right to talk to a lawyer for
advice before we question you and to have
him with you during questioning.

If you cannot afford a lawyer and want one, a
lawyer will be provided for you.

If you want to answer questions now without
a lawyer present you will still have the right
to stop answering at any time. You also have
the right to stop answering at any time until
you talk to a lawyer.


1. Have you read or had read to you
the warning as to your rights?

2. Do you understand these rights?

3. Do you wish to answer any questions?

4. Are you willing to answer questions
without having an attorney present?

5. Signature of defendant on line below.

6. Time ____________ Date _____________

7. Signature of Officer __________________

8. Signature of Witness _______________

218 Part I: The Nationalization of Politics

As with other civil liberties protections, the legislature acts after the Supreme Court
institutes a new rule. Fifth Amendment jurisprudence is no exception. In 1968, as part
of a more encompassing crime law, Congress enacted legislation that sought to overturn
Miranda by permitting all demonstrably voluntary confessions. Lawmakers intended
the provision to return the judiciary’s focus to the nature of the confession and away
from strict adherence to the Miranda rule. For the next three decades, attorneys general
and local prosecutors did not enforce this provision of the law, perhaps believing it to be
unconstitutional. Then in 2000 a case involving the provision finally reached the Supreme
Court. Arguing that the Miranda rule was a fundamental “constitutional principle,” the
Court held that Congress did not have the authority to change the Miranda decision.68
This does not mean, however, that the Court lacks the authority to change its own rule. In
2010, the Court issued three different decisions concerning Miranda rights, all of which
allow exceptions, to some degree, to the protections under Miranda. Most significantly,
the Court ruled that a suspect being interrogated must unambiguously invoke his or her
right to remain silent under Miranda.

Sixth Amendment: Right to Impartial Jury and Right to Counsel

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to
. . . an impartial jury . . . and to have the Assistance of Counsel for his defence.

Impartial Juries
As for the Sixth Amendment’s reference to juries and their procedures, federal courts
have largely allowed the states to determine jury size and whether unanimous agreement
is required for conviction. However, the courts have concentrated on whether juries are
adequately composed of the defendant’s peers. Unrepresentative juries can arise in two
ways: the pool of potential jurors is itself unrepresentative, or the selection process is
biased. Until the 1960s African Americans in the South were effectively excluded from
juries because jury pools were drawn from voter registration lists (see Chapter 4). When
federal registrars signed up Black voters, however, this discrimination was automatically

Potential jurors may be rejected from service either for “cause” (arising from sus-
pected prejudice) or as the target of a peremptory challenge. The latter, a pervasive prac-
tice in state and local courts, allows attorneys on both sides to reject a certain number of
individuals without having to establish cause. Lawyers, seeking the most sympathetic jury
possible, routinely exempt certain types of people depending on the nature of the case and
the personal characteristics of the defendant. They may not, however, use their challenges
to eliminate jurors on the basis of race or sex.

The Right to Counsel
Defendants in any American courtroom can take comfort in the Sixth Amendment
assurances that they are entitled to “a speedy and public trial, by an impartial jury of the

219Chapter 5: Civil Liberties

State and district wherein the crime shall have been committed,” a “compulsory process
for obtaining witnesses in [their] favor,” and “the Assistance of Counsel.” The protections
offered in this amendment have been subject to little controversy.

In 1932 the Supreme Court partially applied the Sixth Amendment to the states when
it required them to provide all indigent defendants in capital cases (that is, those potentially
involving the death penalty) with a lawyer. Full incorporation, however, had to wait until
1963, when Clarence Earl Gideon won one of the most famous decisions in Court history.69
Gideon, a drifter, was accused of breaking into a pool hall. Unable to afford a lawyer, he asked
the Florida trial judge for representation but was turned down, convicted, and promptly sent
to prison. There he became an inspiration for “prison lawyers” everywhere.

With classic David-versus-Goliath determination, Gideon researched the law and
sent to the Supreme Court a handwritten petition claiming that his five-year prison sen-
tence was unconstitutional because he had been too poor to hire an attorney and, as a
result, had been required to defend himself.

Upon taking his case, the Court assigned Gideon a first-class attorney (and future
Supreme Court justice), Abe Fortas, who successfully argued that Gideon’s constitutional
right to counsel had been denied. Indeed, the decision in Gideon v. Wainwright decreed
that anyone charged with a felony must be offered legal representation. Later the Court
expanded eligibility to include any defendant whose conviction might result in incarcer-
ation.70 With over 94 percent of all federal and state prosecutions resulting in guilty pleas,
the Supreme Court recently extended the Sixth Amendment throughout the process.71

In many conviction appeals the Sixth Amendment claim has turned from the avail-
ability of counsel to the adequacy of the defense that court-appointed attorneys provide.
Appeals courts are reluctant to become closely involved with this part of the process, lest
they find themselves asked to second-guess the defense whenever a guilty verdict occurs.
Nonetheless, beginning with a 1984 case, the Court has prescribed that “counsel has a duty
to make reasonable investigations or to make a reasonable decision that makes particu-
lar investigations unnecessary.”72 Evidence that the defense failed to perform at a minimal
competence level offered the defendant grounds to request retrial. Generally, cases involv-
ing the death penalty have received the most careful appellate review.73

Eighth Amendment: “Cruel and Unusual” Punishment

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.

Both “excesses” targeted by the Eighth Amendment have recently come under reassess-
ment. Reflecting Britain’s arbitrary practices, those promoting this amendment with
Madison sought to limit the discretion of government to jail and punish those charged
with crimes. Yet the amendment leaves ample room for discretion by judges—and hence,
room for discrimination—in setting bail and sentences. Advocates of reform have railed
against America’s bail system for decades, until recently without success. Incarcerating

220 Part I: The Nationalization of Politics

poor people, including those who will eventually be found not guilty, can add up to
months in jail simply because they could not post bail. During this time, they may lose
their jobs, cars, homes, and in some instances, their families. This all because they did not
have the funds or credit rating to secure a bail bond. In 2018 the California governor and
state legislature agreed with critics and enacted a reform ending bail in state courts. In its
place judges have the discretion to release or hold defendants based on pretrial assessment
of their flight risk, danger to others, and similar criteria. Other states are considering sim-
ilar reforms and will surely pay close attention to the California reform’s success or failure
over the next couple of years.

The Eighth Amendment’s second excess deals with the highly subjective phrase “cruel
and unusual punishments.” Its vague language assured that the courts would become
involved in deciding where to draw the line. Moreover, as society’s norms and mores
about punishment change, the provision was bound to be periodically revisited. Judges
generally prefer to have elected representatives set the specific fines and penalties and
reserve their oversight to appraising whether police, judges, and juries applied the rules
correctly (“due process”) and fairly (“equal protection”). An example of this has been the
judiciary’s reticence to strike down California’s and other states’ “three strikes” law, which
sharply stiffens sentences for third-time offenders.*

Instead, the Supreme Court has largely limited application of this amendment to
death penalty cases. After decades of refusing to address whether capital punishment
in itself constituted cruel and unusual punishment, the Supreme Court entered the fray
through a back door in a stunning 1972 decision, Furman v. Georgia. It did not overturn
the death penalty per se, but citing quantitative research indicating racial bias, ruled that
as meted out in most states, it violated the Fourteenth Amendment’s “equal protection.”
African Americans convicted of murdering whites were far more likely to receive the
death penalty than were whites convicted of the same crime. A close inspection of the 243-
page decision, the longest in Court history, reveals that only three justices maintained that
the death penalty inherently violates the Bill of Rights. The others who joined the majority
took a narrow approach, citing discriminatory practice as the basis for their ruling.

Immediately the federal government and thirty-five states redrafted laws to deal with
the Court’s objection to Georgia’s sentencing procedures. Some states tried to eliminate
discrimination by mandating that certain heinous crimes carry an automatic death pen-
alty. But these laws were also later rejected as inherently arbitrary and because they did not
allow consideration of mitigating circumstances in sentencing. The solution was found in
a new Georgia statute that separated the conviction from the sentencing stage of the trial,
allowing juries to weigh the particular crime and defendant and any mitigating and aggra-
vating circumstances. In 1976 the 7–2 majority in Gregg v. Georgia proclaimed the new
Georgia statute to be a “model” law, and the death penalty ceased to constitute cruel and

*Ten years after the legislation was enacted, the state had over seven thousand people incarcerated under the
three-strikes law for twenty-five years or more. This number includes three hundred whose last conviction was
for “petty theft.” Linda Greenhouse, “Justices Uphold Long Prison Terms in Repeat Crimes,” New York Times,
March 6, 2004.

221Chapter 5: Civil Liberties

unusual punishment.74 Indeed, the Georgia solution appears to have become an accept-
able option for the state governments that rewrote sentencing procedures shortly after the
Gregg decision and for the prosecutors, judges, and juries that implement them.*

In other cases over the past ten years, the Court has found the following to be cruel
and unusual punishment under the Eighth Amendment: the execution of defendants
with “mental retardation”; the execution of juveniles; and the execution of a defendant
who raped, but did not murder, a child.75 In addition, in 2009 the Roberts Court (with
both Chief Justice Roberts and Justice Kennedy in the majority) ruled that it violated
the Eighth Amendment to sentence a juvenile to life in prison without the possibility
of parole if the crime did not involve a murder. Despite these rulings from the Supreme
Court finding violations of the Eighth Amendment in death penalty cases, more than
1,512 death sentences have been carried out since reinstatement of the death penalty in
1976. As of January 2020, over two thousand six hundred inmates were sitting on death
row.† Both the escalation of executions in the mid-1990s and more recently the equally
sharp decline (see Figure 5.5) have tracked trends in public opinion favoring capital

*In 2016 it vacated a death sentence for a Black defendant in a trial in which the prosecutor appeared to have
used race as the criterion for striking all potential jurors from hearing the case. It also ruled against a Florida
law that allowed trial judges to levy the death penalty instead of strictly following a jury’s decision. Foster v.
Chatman, 14-8349 (2016).
†About 37 percent of all executions since 1976 have taken place in Texas alone; its total of 566 executions far
surpasses that of any other state.

� FIGURE 5.5 As More Americans Oppose the Death Penalty, the Number of
Executions Has Declined












1975 1980 1985 1990 1995 2000 2005 2010 2015 2020










100 Percent O
pposed to the D

eath Penalty


r o

f E



Number of Executions % Opposed to Death Penalty

Sources: Death Penalty Information Center (2020) and Gallup (2020).

Note: The percentage opposed reflects responses to the Gallup poll question: “Are you in favor of the death penalty for a person convicted of murder?”

222 Part I: The Nationalization of Politics

TABLE 5.3 The Meandering Path of Criminal Rights

EARLY 1960s AND 1970s

Search and seizure
(Fourth Amendment)

Wolf v. Colorado (1949):
Fourth Amendment
applies to states but
exclusionary rule not

Mapp v. Ohio (1961):
Improperly obtained
evidence cannot be
introduced at trial.

United States v. Leon
(1984): Exclusionary
rule not constitutionally
protected but a means
to deter police illegality.
Allows good faith and
inevitable discovery

(Fifth Amendment)

Brown v. Mississippi
(1936): Outlaws
confessions extracted by

Miranda v. Arizona
(1966): Officers must
inform suspects of
their rights before

Illinois v. Perkins (1990):
For confessions heard by
undercover police, the
Court rules: “Miranda
forbids coercion, not
strategic deception.”

Right to lawyer (Sixth

Betts v. Brady (1942):
Denies right to lawyer in
state prosecutions where
special circumstances do
not apply.

Gideon v. Wainwright
(1963): Reverses
Betts, guaranteeing all
defendants charged with
a felony a lawyer at trial.

Ross v. Moffitt (1974):
Right to counsel is not
required for discretionary
appeals after conviction.

Double jeopardy (Fifth

Benton v. Maryland
(1969): Forbids state
reindictment of acquitted

Heath v. Alabama
(1985): Double jeopardy
does not apply across
levels of government.

Capital punishment
(Eighth Amendment)

Louisiana ex rel. Francis
v. Resweber (1947):
Death penalty not
inherently “cruel and
unusual” punishment.

Furman v. Georgia
(1972): “Arbitrary”
sentencing process
disallows death penalty.

Baze v. Rees (2008):
Kentucky’s lethal
injection protocol (used
by almost thirty other
states) does not violate
the Eighth Amendment.

Note: Cases in boldface are discussed in the text.

punishment. Although public opinion has gradually grown less supportive of the death
penalty over the past quarter century, a clear majority of the public still favors it for
murder cases.

Time has shown that the rights of the accused are not always easy to appreciate or
enforce. Criminal rights almost always trigger precarious balancing between the defen-
dant’s due process and equal protection rights and the community’s interest in punishing

223Chapter 5: Civil Liberties

the guilty and maintaining social order. When a court frees a guilty person because
of some technical glitch in the criminal justice system—such as from an improperly
filled-out search warrant or an untimely prosecution—controversy erupts. Perhaps
the morass of legal technicalities, as much as the other thorny issues described in this
section, account for the delayed incorporation of criminal rights (see Table 5.3). By the
late 1940s the Supreme Court had applied to the states the entire First Amendment—as
well as the Fourth Amendment (without mandating the exclusionary rule)—but it hesi-
tated to nationalize the remainder of the Bill of Rights.

A right to privacy, unlike other civil liberties, is not explicitly stated in the Bill of Rights or
elsewhere in the Constitution. Indeed, although an implicit “right of privacy” had been
postulated by legal jurists as early as the 1890s, the Supreme Court did not explicitly rec-
ognize its existence until 1965.

But how could the Court “recognize” as constitutional a right that is nowhere
mentioned in the Constitution? In 1965 the Court reasoned in Griswold v. Connecticut
that Americans’ guaranteed rights are not limited to those specifically identified in the
Constitution.76 Indeed, the Ninth Amendment says as much: “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.” This amendment opened the door to unstated rights. Moreover, a
reasonable reading of other amendments invites privacy into the Constitution’s protected
liberties. After all, what does the Constitution’s guarantee of “liberty” mean if not pri-
vacy from state surveillance? Other explicit rights such as freedom of speech and assem-
bly and the prohibitions against self-incrimination and unreasonable search and seizure
require some measure of privacy if they are to be secure. These explicitly guaranteed
rights form penumbras, or implicit zones of protected privacy rights on which the exis-
tence of explicit rights depends. For example, freedom of speech and a free press must
include not only an individual’s right to engage in these activities but also the right to
distribute, receive, and read others’ views. Without these other rights, the specific rights
would be insecure.

Once identified, the right to privacy became subject to all the complexities of interpre-
tation and enforcement associated with other civil liberties. But the overriding question
was, in the absence of constitutional standards, what actions and practices are so personal
or private that they should be shielded from interference by the government?

Childbearing Choices
The Supreme Court’s attentiveness to privacy claims has largely been confined to an
important but narrow domain of public policy: reproductive rights. In extending pri-
vacy in childbearing choices, the courts began not with abortion but with access to con-
traceptives. In 1961 Estelle Griswold, executive director of the Planned Parenthood

224 Part I: The Nationalization of Politics

League of Connecticut, opened a Planned Parenthood clinic, which dispensed contra-
ceptives. Three days after the clinic opened, Griswold was arrested for violating an 1879
Connecticut law prohibiting the use of contraceptives. After losing her case in the state
courts, the defendant appealed her test case in federal court. Not only did she win, but the
Supreme Court decision, Griswold v. Connecticut, laid precedents that emboldened femi-
nist and reproductive freedom groups to pursue abortion rights.

In 1972 Justice William Brennan’s argument in Eisenstadt v. Baird bolstered
the efforts of such groups: “If the right of privacy means anything, it is the right of
the individual, married or single, to be free from unwanted governmental intrusion
into matters so fundamentally affecting a person as the decision to bear or beget
a child.”77 One year later, in the landmark abortion rights decision Roe v. Wade, a
Court majority ruled, “The right of privacy, whether it be founded in the Fourteenth
Amendment’s concept of liberty . . . or . . . in the Ninth Amendment’s reservation of
rights to the people, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.”*

Abortion rights in the United States did not begin with this historic and controversial
decision; many states permitted abortion until the late nineteenth century. Moreover, in
the ten years leading up to the Roe decision, eighteen states either relaxed or repealed their
statutes prohibiting abortion. Thus the Court’s nationalization in 1973 of a woman’s right
to terminate her pregnancy ended abortion’s varying legality across the states.

This said, Roe v. Wade did not remove the states from abortion rights policy. This
decision established that a woman’s decision to end her pregnancy belongs within the
protected sphere of privacy, but it did not wholly exempt abortion from government reg-
ulation. Rather, the Court ruled that in the interest of the mother’s health and the “poten-
tial” life of the fetus, state governments could regulate abortions from the end of the first
trimester of pregnancy to fetus viability (months four through six). Within the final tri-
mester the states could forbid all abortions except those required “for the preservation of
the life or health of the mother.” In 1992 the Court backed away from the trimester stan-
dard, choosing instead the demarcating line of “viability” (which the Court did not define
with precision) and substituted a more ambiguous “undue burden” criterion: prior to via-
bility, states cannot ban abortions, but they can impose certain regulations on both the
women who seek abortions and the doctors who perform them, as long as those regula-
tions do not pose an “undue burden” on the woman’s right to an abortion.78 Waiting peri-
ods, counseling sessions, and parental consent were deemed constitutional as long as they
did not place an undue burden on the abortion right.

Indeed, abortion politics remains the subject of an intense political debate that takes many
forms—confrontational demonstrations by the antiabortion movement, platform fights at
presidential nominating conventions, and legislation both extending and voiding the Roe

*But as Justice Byron White wrote in his dissent from the Roe decision, “The upshot is that the people and the
legislatures of the fifty states are constitutionally disentitled to weigh the relative importance of the continued
existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother,
on the other hand.” Roe v. Wade, 410 U.S. 113 (1973).

225Chapter 5: Civil Liberties

decision. Dozens of new state laws adjusting the boundaries of this privacy right have been
enacted and amended over the past decade (shown in Figure 5.6). For example, at least ten
state legislatures have passed laws requiring a woman seeking an abortion to have an ultra-
sound examination before the procedure is performed. Thirty-five years after Roe, abortion
remains controversial. As a candidate, Donald Trump promised to put pro-life justices on the
Court, and as president he made good on that promise by appointing Justices Neil Gorsuch,
Brett Kavanaugh, and Amy Coney-Barrett—all critics of Roe. If Roe is retrenched or over-
turned, states will play an even greater role in defining a woman’s right to an abortion.

Privacy on the Internet
Although this chapter focuses on the protection of citizens from intrusions on liberty by
the government, increasingly, circumstances arise that blur the line between gathering
of information by government and that by third parties. The proliferation of e-mail, text
messages, GPS technology, cloud computing, and smartphones and an explosion in the
number of consumers who are conducting business online have led to concerns about
(1) third parties that create and maintain massive online databases and (2) the extent to
which the government easily can access that information. For example, employers, credit
agencies, health providers, insurance companies, credit card companies, banks, and
e-mail providers like Google all gather information on users, in ways that may be highly
intrusive of individuals’ privacy.

� FIGURE 5.6 States Become the Main Battleground on Abortion Restrictions














r o

f R




Source: Guttmacher Institute,

Note: By the end of 1970, four states had repealed their antiabortion laws, and eleven states had reformed them.

226 Part I: The Nationalization of Politics

So why are the courts not flooded
with suits charging the people and orga-
nizations that control these databases
with invasion of privacy? Perhaps the
long-standing judicial doctrine that infor-
mation loses its privacy privilege once
conveyed to third parties has discouraged
claims. Or perhaps this area of civil liber-
ties has simply failed to attract the kinds
of group sponsorship typically needed
to make strong cases and sustain them
through the judicial system. But the big-
gest problem with regard to protecting
informational privacy is that federal and
state laws have trouble keeping up with
changing technology. For example, the
Electronic Communications Privacy
Act was passed in 1986, well before most
Americans knew what e-mail was. That
law allows the government to obtain elec-
tronic communications that are over 180
days old without a warrant; only a sub-
poena is required. Finally, there is inherent
tension between the idea of informational
privacy and the reality that so many
Americans voluntarily share personal,
private details about their lives every day
on the Internet. But as Justice Sotomayor
stated in her concurrence in United States
v. Jones (2012), “It may be necessary to

reconsider the premise that an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties.” In the end, individuals, legislators, and
judges will need to reevaluate their ideas of privacy to match the realities of the digital age.

Civil Liberties as Public Policy
Modern civil liberties number among the most divisive and unsettled issues facing the
nation. The Supreme Court’s dominant role in deciding these policies contributes to their
controversy. Once, these issues resided exclusively in the political arena—that is, with state
and local governments and with Congress. But as the Supreme Court carved out a larger
role in these policies, its insulation from public opinion exposed its decisions to criticism

A teen’s life is often carried out online. Here, a teen is playing an online
video game while speaking to his friends over a headset and talking to
others on the phone sitting next to him.
Timothy R. Johnson

227Chapter 5: Civil Liberties

and second-guessing. And, of course, its insulation has allowed it at times to issue highly
unpopular decisions, such as its stance on flag burning and, during the 1960s, its restric-
tions on established law enforcement practices.

How does the image of a small number of unelected, life-tenured justices decid-
ing public policy comport with the principles of democracy? Those who insist that
majority rule must prevail in a democracy cannot justify the Court’s having any role at
all other than duties delegated to it by the democratic (that is, elected) branches of gov-
ernment. Others, however, may accept the authority of a national community to impose
limits on itself and future majorities in making certain decisions. The elaborate rules to
amend the Constitution are a prime example. Other limits can be found in the Bill of
Rights. It removes various personal prerogatives and private behavior from casual gov-
ernment intrusion. The First Amendment opens with “Congress shall make no law . . . ,”
and the list of proscriptions continues throughout the ten amendments. Madison rec-
ognized at the outset that the Supreme Court was well designed to enforce these anti-
majoritarian rules. The Court’s unelected, life-tenured members are well insulated from
the “popular passions” that can run roughshod over personal freedoms. Moreover, the
explicit prohibitions to congressional action create space for the Court to enter as
the Constitution’s guardian. If a national majority wants to ban flag burning, it can wait
for new justices to be appointed and hope they are sympathetic with its position, or it can
try to pass a constitutional amendment. Both avenues promise a lengthy delay and high
transaction costs for the majority with little guarantee of success.

Finally, still others may point out that the majority is not as frustrated in exerting its
preferences as it might appear. Supreme Court justices are subject to many of the same
social and civic influences as are ordinary citizens, and as these circumstances change,
so might justices’ opinions—in tandem with those of the citizenry. Two weeks after the
September 11 attacks, Justice O’Connor observed without alarm, “We are likely to experi-
ence more restrictions on our personal freedom than has ever been the case in our coun-
try.”79 Today we may be experiencing similar restrictions during the COVID-19 pandemic
as state and local governments place restrictions on what businesses may be open, where
(if anywhere) people may gather, and whether people must wear masks over their faces
when they go to these places. That these heightened restrictions may occur and be sanc-
tioned in future judicial policy reflects not so much the compromise of principle in the
face of reality as the fact that judicial doctrine includes provisions for balancing these
elements. The phrase “compelling government interest,” for example, allows evidence to
inform doctrine and hence opens the way for doctrine to change with conditions.

Given the absolute language of the Bill of Rights, someone who is unfamiliar with the
modern history of civil liberties policy might assume that it is settled policy. As we have
seen here, however, civil liberties seem to be constantly changing. When judges come and
go, they permit Court ideology to be brought into closer alignment with partisan control
of the rest of the government. To the extent that citizens disagree on many of these civil
liberties issues, so too will their elected officeholders and, in turn, the judges these poli-
ticians appoint. Other, more direct influences on the Court can be found in the efforts of

228 Part I: The Nationalization of Politics

organized interests as they sponsor clients and submit “friend of the court” briefs. And
finally, ever-changing technology throws into question (and sometimes into confusion)
civil liberties policies based on old realities. All of these forces guarantee that civil liberties
policy, far from settled, as the Framers might have envisioned, will be continuously revis-
ited and frequently revised.


Brandenburg test 199
clear and present danger

test 198
clear and probable danger

test 198
community standards 200
cruel and unusual

punishments 220

due process clause 193
equal protection clause 193
establishment of religion

clause 203
exclusionary rule 215
free exercise clause 203
incorporation 191
Lemon test 204

Miranda rule 218
neutrality test 205
obscenity 200
penumbras 223
privileges and immunities

clause 193
selective incorporation 194


Carter, Stephen L. The Culture of Disbelief: How
American Law and Politics Trivialize Religious
Devotion. New York: Basic Books, 1993. A thought-
ful argument against prevailing Supreme Court
doctrine on the separation of church and state.

Hentoff, Nat. Free Speech for Me . . . but Not for Thee:
How the American Left and Right Relentlessly Censor
Each Other. New York: HarperPerennial, 1992. A
highly original account of how political groups gain
a political advantage through censorship.

Lewis, Anthony. Freedom for the Thought That We
Hate: A Biography of the First Amendment. New
York: Basic Books, 2007. Although on balance
Lewis is more comfortable with established free
speech doctrine that embraces the marketplace
metaphor, he does not consider it sacrosanct. Might

hate speech and libel doctrines, among others,
impose real costs on society? Once again, Lewis
poses serious questions in a style and language
appropriate for a general audience.

Wheeler, Leigh Ann. How Sex Became a Civil
Liberty. New York: Oxford University Press, 2012.
This fascinating history of the emergence of sexual
expression as a form of free speech emphasizes the
critical role played by the American Civil Liberties

Winkler, Adam. Gunfight: The Battle over the Right
to Bear Arms in America. New York: Norton, 2011.
Excellent history of the evolution of the National
Rifle Association and its role in promoting gun
ownership as a personal freedom.

229Chapter 5: Civil Liberties


1. Through what individual steps did the
Constitution acquire civil liberties protections?

2. How has individual liberty been elevated from
a private local matter into a prominent national
policy issue?

3. How has the role of national government dif-
fered in the development of civil rights policy
versus that of civil liberties?

4. How did the Bill of Rights come to apply to

5. Do the states still have a role in defining civil

House Judiciary Chair Jerry Nadler (D-N.Y.) and ranking member Douglas Collins (R-Ga.) display their displeasure during the
impeachment hearings of December 2019.

Shawn Thew-Pool/Getty Images



• Why do members of the House and Senate follow complex,
arcane rules and precedents in processing legislation even
when such devices keep majorities from getting their way?

• Congressional incumbents rarely lose elections. Why, then,
are they obsessed with the electoral implications of nearly
everything they do?

• Why have the House and Senate become so much more
polarized along partisan and ideological lines over the past
several decades?

• Why have congressional party leaders grown more powerful
and committees less powerful over the same period?


6.1 Describe the requirements and
powers of Congress and how
the congressional electoral
system works.

6.2 Identify the factors that create
advantages and disadvantages
in congressional electoral

6.3 Discuss the racial and ethnic
makeup of Congress, and
discuss whether this mirrors
the electorate.

6.4 Explain six basic problems of
legislative organization.

6.5 Relate the institutional
structures in the House and
Senate that help members
overcome barriers to collective

6.6 Describe the lawmaking
process and how it operates
under “regular order.”

6.7 Understand how the
public views Congress and
develop your own view of its

On December 18, 2019, history had its eyes on the U.S. House
of Representatives as its members lined up almost perfectly
along party lines to impeach President Donald J. Trump, only
the third time that Congress had taken this dramatic step.
Throughout that fall, the impeachment inquiry had roiled the
House and the nation. Democrats investigated allegations that
the president and his top aides pressured Ukraine and illegally
withheld military aide to our ally to push its president to produce
damaging information that Trump could use against Joe Biden in
the 2020 campaign. In November, the gripping hearings held by
the House Intelligence Committee were watched by more than 10
million viewers a day, making celebrities—or villains, depending
on the viewer’s perspective—of the witnesses from the Trump
administration who provided evidence against the president.

On the day of the final vote, Democratic representative Adam
Schiff, who led the inquiry, warned that not only had the
president abused his power in the past but that “the president
and his men plot on. The danger persists. The risk is real. Our
democracy is at peril.” For his part, the president tweeted

232 Part II: The Institutions of Government

was blockbuster politics playing
out in full public view, culminating
in a historic impeachment vote that
was shaped by intense partisan
polarization and sent the two branches
of government into the collision
course of an impeach trial during an
election year.1

The next day, December 19, 2019, was a
far less dramatic one in Congress but
arguably no less historic. With their
leading parts in the impeachment
drama behind them, members of the
House moved back to the legislative

process that characterizes their typical, though far less thrilling, work. Lawmakers
seemed to switch into different roles, with their rhetoric more subdued and their
positions no longer dictated by their party affiliations. Yet the issue they took up on the
day after impeachment was arguably weightier, landing Congress on the front page of
newspapers yet again—the passage of a new North American trade deal that brought
partial fulfillment of one of President Trump’s key campaign promises. The United
States–Mexico–Canada Agreement, or USMCA, replaced the NAFTA free trade deal that
for the past twenty-six years had reduced tariffs, increased the flow of goods, and shaped
the flow of jobs across the continent.

The new deal replaced free trade with managed trade, marking a significant shift in
how the United States positioned itself in the world and promising potential payoffs to
manufacturing in America. Still, this was a tempered approach that won support in all
three nations because it did not lurch too far too quickly and in both American parties
because it was not fought out in televised hearings or over Twitter. Democrats were
able to secure the labor and environmental protections they sought, while the president
and the more populist Republicans allied with him on trade were able to create export
quotas designed to protect domestic factories and farms. According to one observer,
“On the whole, USMCA is not the kind of sweeping, game-changing deal that Trump
often boasted he would produce. Indeed, it was quietly negotiated over many months by
just the kind of professional economists and diplomats that the president often scorns.”2
Its passage by a 385–41 margin in the House—with both President Trump and House

A joyful House Speaker Nancy Pelosi and Ways and Means Chair Richard
Neal speak at a news conference about the United States–Mexico–Canada
Agreement trade deal at a December 2019 news conference.
Mark Wilson/Getty Images

233Chapter 6: Congress

Speaker Nancy Pelosi claiming credit for the deal—was stunning in juxtaposition to the
impeachment vote that had occurred just the day before.

What do these events begin to tell us about the contemporary Congress? These paired
episodes reveal how differently Congress can operate, depending on the political
circumstances and the policy disputes at play, even within the same forty-eight-
hour period. To paraphrase Dickens, it was the most polarized of times, it was the
least polarized of times, with a day of very public rancor followed by a day of private
dealmaking in this tale of two Congresses. On impeachment, only two Democrats voted
against Article I, which charged President Trump with abuse of power and passed by
a 230–197 margin, with a third Democrat joining them to cross party lines and oppose
Article II, obstruction of Congress. One of those Democrats, freshman Jeff Van Drew of
New Jersey, announced that he would switch parties to become a Republican. For their
part, Republicans lined up steadfastly behind their president to oppose impeachment,
with Justin Amash, the Michigan lawmaker who supported impeachment, switching
from being a Republican to an independent. Partisan divisions were so strong on this
vote, then, that two representatives changed parties rather than stay on the wrong
side of the line. By contrast, large majorities of both parties came together to support
the USMCA trade deal, with only thirty-eight Democrats, two Republicans, and
independent representative Amash opposing it. While trade policy had often brought
divisions within each party, lawmakers from both parties representing swing districts
all felt strong electoral pressure to deliver some progress on the issue.

The trade deal, a political compromise supported by labor as well as business groups,
was the perfect way for representatives to demonstrate that they could respond to public
demands for policy movement. But there could be no compromise over impeachment; this
was an issue that, by its nature, posed an all-or-nothing choice. And with voters polarizing
over impeachment, representatives who wanted to honor the electoral connection were
generally pushed to vote the party line. As this chapter shows, the congressional parties
have become highly polarized in recent decades. Democratic members now routinely
line up on the left side of political issues in Congress, and Republican legislators are
consistently on the right-hand side of the spectrum. On controversial, high-profile issues
such as impeachment, this leads to prominent party line votes, but the everyday work of
Congress more often finds issues of consensus that closely resemble the trade deal.

No matter what the issue, electoral politics influences almost everything members of
Congress do, collectively and individually. On both impeachment and trade, legislators
heard from their constituents and sought to cast a vote that they could defend in their
run for reelection. Another common theme in the two episodes was the prominent role
played by President Trump. When Congress takes up issues that are vital to the chief
executive’s interests, the president will always feature, either in the foreground or the

234 Part II: The Institutions of Government

background, in negotiations and final votes. The election of President Biden in 2020
will greatly impact how Congress operates in the next session.

This chapter explores these themes while explaining how and why the House and Senate
operate as they do. It also looks at how these institutions have evolved in response to the
changing motives and opportunities, personal and political, of the politicians elected to
them. Any such discussion must be prefaced, however, by a review of the constitutional
design of Congress and the extensive powers granted it by the Framers.

Congress in the Constitution
The basic structure of Congress is the product of the Great Compromise at the
Constitutional Convention, described in Chapter 2. Balancing the demands of the large
states for national representation against those of the small states for protection of states’
rights, the Framers established in the Constitution a House of Representatives, with seats
allocated by population and members elected by the citizenry, and a Senate composed of
two members from each state chosen by the state legislature. Bicameralism (two houses)
also resolved another dispute. Delegates to the convention disagreed about the appropriate
degree of popular influence on government. Using the bicameral structure, they were able
to devise a mixed solution. Representatives would be “popularly” chosen in biennial elec-
tions held in even-numbered years. Broad suffrage—the qualification for voting was to be
the same as for the “most numerous Branch of the State Legislature” (Article I, Section 2)—
and short tenure were intended to keep the House as close as possible to the people.

The Senate, by contrast, would be much more insulated from transient shifts in the
public mood. Senators would be chosen by state legislatures, not directly by the voters.
The term of office was set at six years, and continuity was ensured by requiring that one-
third of the Senate’s membership stand for election every two years. The Senate could thus
act as a stable, dispassionate counterweight to the more popular and radical House, pro-
tecting the new government from the dangerous volatility thought to be characteristic of
democracies. As James Madison put it in Federalist No. 62, “The necessity of the Senate
is . . . indicated by the propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be seduced by factious leaders into
intemperate and pernicious resolutions.” The Senate also incorporated remnants of state
sovereignty into the new national government.

Qualifications for office also reflected the Framers’ concept of the Senate as the more
“mature” of the two chambers (senate is derived from the Latin senex, old man). The
minimum age for representatives was set at twenty-five years; for senators, thirty years.
Representatives had to be citizens for at least seven years; senators, for nine years. Both
were required to reside in the state they represented. Representatives do not have to live in
the districts they serve, but in practice they almost always do. These are the only qualifica-
tions for office specified in the Constitution. The property-holding and religious qualifi-
cations included in many state constitutions were explicitly rejected, as was a proposal to

235Chapter 6: Congress

forbid a member’s reelection to office after serving a term. The Articles of Confederation
had included a reelection restriction, but the Framers thought it had weakened Congress
by depriving it of some of its ablest members.

Powers of Congress
As we saw in Chapter 2, the Constitution established a truly national government by giv-
ing Congress broad power over crucial economic matters. Article I, Section 8, autho-
rizes Congress to impose taxes, coin and borrow money, regulate interstate and foreign
commerce, and spend money for the “common Defence” and “general Welfare.” Tacked on
at the end of this list of specific powers is a residual clause authorizing Congress “to make all
Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the United States, or in
any Department or Officer thereof.” Accepted by many delegates as an afterthought, this nec-
essary and proper clause—often known as the elastic clause because it “stretches” the powers
of Congress—has proved to be the single most extensive grant of power in the Constitution,
giving lawmakers authority over many spheres of public policy (covered in Chapter 3).

Congress was given significant authority in foreign affairs as well. Although the presi-
dent is designated commander in chief of the armed forces, only Congress may declare war,
raise and finance an army and a navy, and call out the state militias “to execute the Laws of
the Union, suppress Insurrections and repel Invasions” (Article I, Section 8). The Senate
was granted some special powers over foreign relations. In its “advice and consent” capac-
ity, the Senate ratifies treaties and confirms presidential appointments of ambassadors.

The Senate also confirms the president’s nominees to all federal courts and top execu-
tive branch positions. These powers reveal that, in part, the Framers viewed the Senate
as an advisory council to the executive, modeled on the upper chambers of some state leg-
islatures. But they also reflect the Framers’ belief that the more “aristocratic” and insulated
of the two houses would keep a steadier eye on the nation’s long-term interests. The Senate’s
constitutional check on appointments has been challenged in practice, though, by a tac-
tic that President Trump has frequently used when that chamber—which is controlled by
Republicans—has balked at confirming some of his nominees. When Trump’s nominees
have lacked support in the Senate, he has installed them in “acting” positions or given them
“delegation authority” without a Senate vote. This has included an acting director of national
intelligence and deputy directors who have been delegated the authority to lead Immigration
and Customs Enforcement and the National Park Service, each lacking Senate consent. “If
an appointee cannot gain the support of the Senate,” argued the chair of the House Armed
Services Committee after the president pulled a top Pentagon appointee ninety minutes
before his confirmation hearing and instead delegated authority to him, “then the president
should not put that person into an identical temporary role. This evasion of scrutiny makes
our government less accountable and prioritizes loyalty over competence.”3

In distributing power between the House and the Senate, the delegates sought a
proper balance of authority. One bone of contention was the power to raise and spend
money. Some delegates wanted to give the House, as the chamber closer to the people,

236 Part II: The Institutions of Government

the exclusive authority to enact legislation to raise or spend money; the Senate would
be allowed to vote on House bills but not amend them. The final compromise required
merely that bills raising revenue originate in the House, with the Senate having an unre-
stricted right to amend them. The House was given no special mandate to initiate spend-
ing bills, but it has assumed that right by custom as an extension of its special authority
over revenue bills.

Despite its many legislative powers, Congress does not have exclusive authority over
legislation. The president may recommend new laws and, in emergencies, call Congress
into special session. Most important, the president has the power to veto laws passed by
Congress, killing them unless two-thirds of each chamber votes to override the veto.

Increasingly, Congress has resorted to using the legal system to defend its constitutional
prerogatives. Congress rarely went to court against the executive branch throughout much
of American history, but after the Watergate scandal the House created a general counsel
office to file lawsuits allowing it to do things like defend a subpoena if the White House tried
to block it. House Democrats used the office to compel disclosures from the Bush admin-
istration in 2008, while House Republicans used it to sue the Obama administration for
documents in 2012. The House filed nine lawsuits in 2019 alone when the Trump adminis-
tration opposed numerous subpoenas and calls for witnesses to testify. “It is unprecedented,”
observed Charles Tiefer, who had served as a longtime House lawyer, that year. “The chal-
lenges for the House counsel ebb and flow over time, but this is like nothing else in history.”4

The Electoral System
Two choices made by the Framers regarding the electoral system have profoundly affected
the development of Congress. First, members of Congress and presidents are elected sep-
arately. In parliamentary systems like those found in most European countries, govern-
ment authority rests with the legislature, which chooses the chief executive (called the
prime minister or premier). Thus voters’ choices for legislators depend mainly on voter
preferences for leader of the executive branch. In the United States, voters are presented
separate choices for senator, representative, and president.

Second, members of Congress are elected from states and congressional districts by plu-
rality vote—that is, whoever gets the most votes wins.* Some parliamentary systems employ
proportional representation, which gives a party a share of seats in the legislature match-
ing the share of the votes it wins on Election Day. For example, if a party’s share of votes enti-
tles it to eighty-five seats, the first eighty-five candidates on the party’s slate go to parliament.
The voters, then, choose among parties, not individual candidates, and candidates need not
have local connections. Party leaders under this system are very powerful because they con-
trol parliamentary careers by deciding who goes on the list and in what order.

American legislators are elected from territorial units, not party lists. Parties do matter
in congressional elections, and with rare exceptions, only major-party nominees have any

*In the past, some states elected some or all of their U.S. representatives in statewide “at-large” districts. A 1964
Supreme Court decision, Wesberry v. Sanders, ended the practice by requiring that districts have equal popu-
lations. One state, Georgia, requires an absolute majority of votes to win general elections to Congress. If no
candidate wins such a majority, a runoff election is held between the top two finishers.

237Chapter 6: Congress

chance of winning (covered in Chapter 12). But the parties do not control nominations.
Almost all congressional nominees are now chosen by voters in primary elections—
preliminary contests in which voters select the parties’ nominees. Candidates thus get
their party’s nomination directly from voters, not from party activists or leaders.

Congressional Districts
After the first census in 1790, each state was allotted one House seat for every 33,000
inhabitants, for a total of 105 seats. Until the twentieth century the House grew as popula-
tion increased and new states joined the Union. Total membership was finally fixed at its
current ceiling of 435 in 1911, when House leaders concluded that further growth would

� MAP 6.1 Apportionment’s Winners and Losers


Added House seats

Lost House seats

No change

1950: 30
2010: 53

change: +23

1950: 8
2010: 27
change: +19

1950: 7
2010: 8
change: +1

R. I.
1950: 2 2010: 2
change: 0

1950: 2
2010: 2

change: 0

1950: 1
2010: 1

change: 0


1950: 1 2010: 1 change: 0

1950: 6 2010: 5 change: -1

1950: 14 2010: 9

change: -5

1950: 22
2010: 36

change: +14

1950: 0
2010: 2

change: +2

1950: 0
2010: 1

change: +1

1950: 1
2010: 4

change: +3

1950: 2
2010: 2

change: 0 WYOMING
1950: 1
2010: 1

change: 0

1950: 4
2010: 5

change: +1

1950: 2
2010: 4

change: +2

1950: 7
2010: 10

change: +3

1950: 2
2010: 9

change: +7

1950: 4
2010: 7

change: +3

1950: 6
2010: 5

change: -1

1950: 9
2010: 8

change: -1

1950: 2
2010: 1

change: -1

1950: 2
2010: 1

change: -1

1950: 2
2010: 1

change: -1

1950: 11
2010: 9

change: -2

1950: 30 2010: 18

change: -12

1950: 6
2010: 4

change: -2

1950: 9
2010: 7

change: -2

1950: 6
2010: 4

change: -2

1950: 11
2010: 8

change: -3

1950: 18
2010: 14

change: -4

1950: 8
2010: 4

change: -4 W.VA.
1950: 6
2010: 3

1950: 6
2010: 4

change: -2

1950: 8 2010: 6

change: -2

1950: 10
2010: 8

change: -2

1950: 23
2010: 16

change: -7


1950: 43
2010: 27

change: -16

1950: 25
2010: 18

change: -7

1950: 4
2010: 3

change: -1

1950: 14 2010: 12 change: -2

1950: 8
2010: 6
change: -2

1950: 2
2010: 3

change: +1



1950: 9 2010: 9

change: 0

1950: 10
2010: 14

change: +4

1950: 12
2010: 13
change: +1

1950: 6
2010: 7
change: +1

1950: 10
2010: 11
change: +1

1950: 3
2010: 2
change: -1

Since 1950, the South and West have been gaining House seats at the expense of the Northeast and Midwest

Source: U.S. Bureau of the Census,

Note: Alaska and Hawaii were not yet states in 1950.

238 Part II: The Institutions of Government

impede the House’s work. Since 1911, states have both lost and
gained seats to reflect population shifts between the decennial
(ten-year) censuses. Changes in the sizes of state delegations to
the House since World War II illustrate vividly the major pop-
ulation movements in the United States (depicted in Map 6.1).
States in the West and South have gained at the expense of the
large industrial states in the Northeast and Midwest.

Federal law may apportion House seats among states after
each census, but each state draws the lines that divide its territory
into the allotted number of districts. In 1964 the Supreme Court
ruled in Wesberry v. Sanders that districts must have equal popu-
lations.5 In Thornburg v. Gingles (1986) the Court ruled that district
lines may not dilute minority representation but neither may they
be drawn with race as the predominant consideration.6 Within
these limits states can draw districts pretty much as they please.
If one party controls both the legislature and the governorship, it
may attempt to draw district lines that favor its own candidates.
The idea is to concentrate the opposition party’s voters in a small

number of districts that the party wins by large margins, thus “wasting” many of its votes,
while creating as many districts as possible where one’s own party has a secure, though not
overwhelming, majority. Called gerrymandering, this process—the extensive manipula-
tion of the shape of a legislative district to benefit a certain incumbent or party—sometimes
produces bizarrely shaped districts. The root of this term was a district drawn in 1812 by
Massachusetts legislators working with Governor Elbridge Gerry. When the painter Gilbert
Stuart saw the misshapen district, he penciled in a head, wings, and claws and exclaimed,
“That will do for a salamander!” Editor Benjamin Russell replied, “Better say a Gerrymander.”

The constitutionality of partisan gerrymanders has been challenged in court, but so far
with limited success. In Davis v. Bandemer (1986) the Supreme Court held that a gerryman-
der would be unconstitutional if it were too strongly biased against a party’s candidates but
has yet to declare any districting scheme to be in violation of this vague standard.7 None of
the challenges to the Republican gerrymanders executed after the 2010 reapportionment
(refer to Strategy and Choice box “The Republican Gerrymander in 2012”) has prevailed, but
in 2018 the Court refused to stay a decision of the Pennsylvania Supreme Court overturn-
ing a pro-Republican gerrymander as violating the state’s constitution. Ongoing litigation in
lower federal courts will oblige the Supreme Court to revisit the issue in the near future.

Racial Gerrymandering
The Court’s 1986 Gingles decision, requiring that legislative district lines not discrimi-
nate, even unintentionally, against racial minorities, was widely interpreted as directing
mapmakers to design districts in which racial and ethnic minorities constituted a major-
ity of voters wherever residence patterns made this feasible.8 Attempts to conform to this
decision after the 1990 census led lawmakers to draw irregular districts in some states that
gave minority voters the opportunity to elect a representative of their choice. For example,

Editorial cartoon of the first gerrymander in
Courtesy of the Library of Congress Prints &
Photographs Division





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240 Part II: The Institutions of Government


The Republican Gerrymander in 2012
The Republican Party has long enjoyed an
advantage in the House because its regular
voters are distributed more efficiently across
House districts than are regular Democratic
voters. The advantage exists mainly because
Democrats win a disproportionate share of
minority, single, young, LBGTQ+, and highly
educated voters who are concentrated in urban
districts that deliver lopsided Democratic
majorities. Loyal Republican voters are spread
more evenly across suburbs, smaller cities, and
rural areas, so that fewer Republican votes are
“wasted” in highly skewed districts.

The Republicans’ sweeping national victory in
2010 enabled them to strengthen this structural
advantage by giving them control of the
redistricting process in eighteen states with a
total of 202 House seats. Democrats controlled
the process in only six states with a total of forty-
seven seats. (In twelve of the remaining states,
the parties shared control; seven were redistricted
by commissions, and seven were single-district
states.) Republican-controlled states made the
most of this gerrymandering opportunity. To
see this, we can use the Cook Political Report’s
Partisan Voting Index (PVI), which is computed
as the difference between the average district-
level presidential vote in 2004 and 2008 and the
national presidential vote averages for these
elections.a For example, the national average of
the Democratic presidential vote in these two
elections was 51.2 percent, so a district with a
two-election average of 54.2 percent would have
a PVI of +3, whereas a district with an average of
48.2 percent would have a PVI of −3.

Republicans already held a considerable
advantage by this measure before the 2012
redistricting, with 210 Republican-leaning
districts (defined here as having a partisan
voting index less than −2) compared with 175
Democratic-leaning districts (index greater

than 2); the remaining fifty districts were
balanced, with indexes between −2 and +2. After
redistricting, there were eleven more Republican-
leaning districts, five fewer Democratic-leaning
districts, and six fewer balanced districts. This
result was clearly intended; where Republicans
controlled redistricting, the party gained sixteen
favorable districts while the Democrats lost one
and balanced districts were reduced by eleven.

Once the votes were counted, House election
results matched district leanings with remarkable
consistency. Only ten Democrats won
Republican-leaning districts in 2012, and not a
single Republican won in a Democratic-leaning
district. The balanced districts were divided
almost perfectly in half. These distributions
changed only modestly in 2014 despite the
Republicans’ strong showing nationally. In 2016,
with the PVI recalculated using the 2008 and
2012 presidential votes, both the Republican
advantage and the extremely close match
of results to district partisanship remained.
In the “blue wave” election of 2018, however,
the Democrats’ national vote margin of 8.6
percentage points was large enough to overcome
their structural disadvantage, delivering their
largest net gain since 1974, forty seats. They
won twenty-four seats in Republican-leaning
districts (mostly in upscale suburbs) as well
as all but two of the balanced districts to reach
their 235–200 majority. But they might have
done even better if Republican gerrymanders
had not proven so effective in several states. In
Ohio, the Democrats’ share of House votes cast
rose from 40 percent to 48 percent from 2014
to 2018, but they still won only the same four of
the state’s sixteen seats; in North Carolina, their
vote share rose from 44 percent to 49 percent,
but their seat share remained unchanged at
three of thirteen; in Wisconsin, the Democratic
vote rose from 47 percent to 54 percent without
changing the Republicans’ 5–3 seat advantage. In

241Chapter 6: Congress

Pennsylvania, by contrast, after the state supreme
court determined that Republicans violated the
state constitution and compelled new districts
to be drawn (hence the totals in each column for
2018 do not match 2016), the Democrats ended

up winning nine of the state’s eighteen seats, up
from four in 2014, as their vote share rose from 44
percent to 55 percent. Gerrymandering did not
preserve the Republicans’ House majority in 2018,
then, but it did reduce their losses.


Control of redistricting

District partisan advantage

Democrat >2 Balanced Republican > 2

All districts 2010








Change Minus 5 Minus 6 Plus 11

Republican control 2010








Change Minus 1 Minus 11 Plus 16

Other control 2010








Change Minus 4 Plus 5 Minus 5

Election results, 2012

Democrat won

Republican won






Election results, 2014

Democrat won

Republican won






Election results, 2016

Democrat won

Republican won






Election results, 2018

Democrat won

Republican won






Note: District partisan advantage is based on the Cook PVI; see text for a description.

aDavid Wasserman and Ally Flinn, “Introducing the 2017 Cook Political Report Partisan Index,” The Cook Political Report, April 7, 2017, at

242 Part II: The Institutions of Government

North Carolina legislators carved out two majority Black districts (First and Twelfth) that
eventually came before the Court (depicted in Map 6.2). The Court decided in 1993 that
such irregular districts went too far,9 and in 1995 that districts could not be drawn solely to
benefit one race, even one that had faced past discrimination.10 Thus, the North Carolina
districts had to be redrawn. Modified twice before receiving final Court approval, the
districts had some of their rough edges smoothed off but retained all the earmarks of a
painstaking gerrymander. The post-2010 North Carolina districts were again success-
fully challenged in court on racial grounds, and the lines in place under court order for the
2016 election modified the First and radically altered the Twelfth. The North Carolina leg-
islature responded by drawing new lines, this time as an explicitly partisan gerrymander
intended to assure Republicans would win ten of the state’s thirteen House seats even with
less than half the statewide vote. A U.S. district court ruled this map unconstitutional but
not in time for new lines to be drawn before the 2018 election, in which Democratic can-
didates won 49 percent of the House vote statewide but still only their current three seats.

Unequal Representation in the Senate
The fifty Senate constituencies—entire states—may not change boundaries with each
census, but they vary greatly in size of population. Senator Dianne Feinstein, D-Calif., rep-
resents nearly forty million people, whereas Senator Mike Enzi, R-Wyo., has fewer constit-
uents (574,000) than does the average U.S. representative (750,000). The nine largest states
are home to 51 percent of the total U.S. population, whereas the smallest twenty-six states,
with 52 percent of Senate seats, hold only 18 percent of the population. Unequal Senate
representation currently favors Republicans, who tend to do better in the smaller states.*

Until 1913 senators were chosen by state legislatures. Most Americans had long since
concluded that this method of selection was undemocratic and corrupting (between 1890
and 1905 charges of bribery shadowed Senate elections in seven states).11 But it took the
reforming spirit of Progressivism at its peak to convince senators to agree to a constitu-
tional amendment (the Seventeenth) providing for popular election.12 As it turned out,
they had little to fear from the change; senators have been about as successful in winning
reelection as they had been in persuading state legislatures to return them to office.†

Congress and Electoral Politics
The modern Congress is organized to serve the goals of its members. A primary goal
for most of them is to keep their jobs. And because voters have the final say in their

*In the 116th Congress, Republicans held 60 percent of the Senate seats in the twenty-nine states with seven or
fewer House districts, whereas Democrats held 57 percent of the seats in the twenty-one states with more than
seven districts.
†A remaining democratic anomaly is the absence of representation of any kind, in the Senate or the House,
for the six hundred thousand Americans who live in Washington, DC. Citizens living in the nation’s capital
do get to vote for three presidential electors, however. They also elect a nonvoting delegate to the House of
Representatives (Eleanor Holmes Norton during the 116th Congress).

243Chapter 6: Congress

hiring and firing, a career in Congress depends on members winning the voters’
endorsement at regular intervals. Reelection is not their only objective, but winning
regular reelection is essential to everything else members want to achieve in office.
A rewarding career in Congress is also much more likely if one serves in the majority
party, so a party victory is also a major goal. Electoral imperatives thus shape all
important aspects of congressional life.

Candidate-Centered versus Party-Centered Electoral Politics
The electoral environment that members of Congress must negotiate to win and hold
their seats has undergone notable changes over time, varying between more party-cen-
tered and more candidate-centered systems. During much of the nineteenth century, the
system was predominantly party centered. Party-line voting was prevalent; voters based
their choices on the top of the ticket—the presidential candidates in presidential elec-
tion years—and on the parties’ platforms. Congressional candidates’ fates were decided
by national trends they could do little personally to shape or control. Changes in the laws
regulating elections and parties around the turn of the century weakened parties and
encouraged ticket-splitting—that is, voting for candidates of different parties for differ-
ent offices.13 The most important of these changes was the introduction of primary elec-
tions for choosing the parties’ nominees and the secret ballot (covered in Chapter 12).
Still, party conflicts over national policy, most notably the political battles over President
Franklin Roosevelt’s New Deal, continued to inject a strong national component into con-
gressional elections until the 1950s. As the New Deal controversies faded, however, the
party coalitions built around them fractured under the stress of divisive new issues, most
prominently civil rights, the Vietnam War, and social issues such as abortion and the envi-
ronment. Party lines became blurred, and party loyalty among voters declined.

As party ties weakened, a more candidate-centered electoral process emerged. The
decline in party loyalty among voters offered incumbents a chance to win votes that once
would have gone routinely to the other party’s candidate. Members sought to expand their
electoral base by emphasizing individual character, legislative performance, and constitu-
ency services, encouraging voters to use such criteria in deciding how to vote.14 Realizing
that the growth of candidate-centered electoral politics worked to the advantage of incum-
bents willing to build a personal following, members of Congress voted themselves greater
resources for servicing their states and districts—that is, higher allowances for staff, travel,
local offices, and communication. These allowances are now worth more than $1.2 million
annually per legislator in the House and up to three times as much per senator, depending
on the population of the state represented.15 Electoral data demonstrate the success of these
efforts. The House incumbency advantage, measured in the extra share of votes a candidate
typically received by running as an incumbent (shown in Figure 6.1)16, rose from 1 to 2 per-
centage points prior to the mid-1960s to an average of 8 percentage points in elections from
1966 through 2002. Since then, however, it has declined sharply and in the four most recent
elections was back to the low levels typical of the 1950s.17

244 Part II: The Institutions of Government

� FIGURE 6.1 The Incumbency Advantage in U.S. House Elections, 1952–2020 (Average of
Three Measures)











f I









































Source: Compiled by authors.

Note: Refer to endnote 17 for a description of this index.

In the earlier period, incumbents were successful largely because they represented dis-
tricts that voted consistently for one party’s candidates. From the mid-1960s through the
1980s, they became much more successful in winning in districts where their party did
not have a natural majority. Since then, incumbents have continued to win at high rates
but to an increasing extent because they represent districts with electorates that favor their
parties’ candidates, incumbent or not.

The changing ability of congressional candidates to win against the partisan grain,
measured by their ability to win a state or district their party’s presidential candidate lost, is
illustrated in Figure 6.2. Both House and Senate candidates were unusually successful in
winning seats in the other party’s presidential territory in the 1970s and 1980s, but such vic-
tories have since become rarer. They were particularly scarce in 2012, when only twenty-six
of the 435 House districts delivered a split verdict, and again in 2016 when, for the first time
in history, every Senate contest was won by the party that won the state’s electoral votes. This
trend reflects the growth in party-line voting discussed in Chapter 12 and the decline in the
ability of incumbents (and other candidates) to separate themselves from their party’s col-
lective fate. In particular, electoral fortunes of congressional candidates are increasingly tied

245Chapter 6: Congress

to those of their presidential candidates; the correlations between the vote shares won by
presidential candidates and congressional candidates at the state and district levels have
become much stronger in recent years (shown in Figure 6.3).* Congressional elections are
increasingly treated by voters as national events, with presidents and presidential candidates
as a major focus. The 2018 midterm election was the most nationalized, president-centered
midterm election yet observed, with the correlation between the House and presidential vote
two years earlier at a record 0.97 and with the smallest incumbency advantage since the 1950s
(refer to Figure 6.1).18

The emergence of a more nationalized, party-centered electoral process has contrib-
uted directly to the increase in the partisan and ideological polarization in the House and
Senate, discussed later in this chapter, for it has given the congressional parties much more
distinctly partisan electoral constituencies. For example, back in 1976, the average vote for
Democratic presidential candidate Jimmy Carter in House districts won by Democrats
was 56 percent, whereas the average vote for Carter in districts won by Republicans was
45 percent, a difference of 11 percentage points. This gap has grown steadily since then;
in 2016, Trump’s average vote in districts won by Republicans was 62 percent, whereas

*Correlations take values from 0.0 (no relationship at all) to 1.0 (a perfect relationship).

� FIGURE 6.2 States and Districts Delivering Split Outcomes in Presidential and
Congressional Contests, 1952–2020


















House Elections Senate Elections

Source: Compiled by authors.

246 Part II: The Institutions of Government

his average in districts won by Democrats was 33 percent, a difference of 29 percentage
points. The comparable gap between states won by Republican and Democratic senators
was 6 points in 1976 and 19 points in 2016. The trend toward nationalization continued
with Joe Biden’s victory in 2020. With their constituencies so far apart politically, the con-
gressional parties have found it increasingly difficult to find common ground.

National Politics in Congressional Elections
The resurgence of party- and president-centered voting over the past two decades has
strengthened the national component of congressional election politics, but even during
the heyday of locally focused, candidate-centered elections, national forces continued
to have a palpable effect on electoral fates and thus the partisan composition of Congress.
In midterm elections the president’s party almost always loses congressional seats, but
the size of its losses depends in part on the performances of the national economy and the
president. Losses tend to be fewer when the economy is booming and the president is pop-
ular and greater when the economy or the administration’s popularity sags. Thus, George
W. Bush’s leadership in the war on terrorism produced high approval ratings in 2002
that helped his party achieve small gains in the House and Senate, a rarity for the presi-
dent’s party in midterm elections. With Bush’s ratings 25 points lower in 2006, Democrats
picked up enough seats to take control of both chambers. In 2010 high unemployment,

� FIGURE 6.3 Increased Correlations between the Presidential and Congressional Votes at the
District and State Levels


















Senate House

Source: Compiled by authors.

247Chapter 6: Congress

public dissatisfaction with the direction of the economy, and Barack Obama’s mediocre
approval ratings cost the Democrats sixty-four House and six Senate seats. Despite a robust
national economy, Donald Trump’s low approval ratings in 2018 (around 40 percent) cost
the Republicans forty House seats and control of that chamber, and when President Trump
lost his reelection campaign in 2020, the GOP also lost control of the Senate—with two
especially surprising losses coming in the January 5, 2021, special election in Georgia after
Trump made false charges of voter fraud and attacked Republican elections officials there.

As these elections showed so dramatically, members of Congress can no longer disso-
ciate themselves from their party’s fate, so they retain a personal stake in their party’s pub-
lic image as well as the public standing of the president. Nor can they separate themselves
from Congress itself, though incumbents frequently try to do so. Individual members
remain far more popular than Congress collectively, but they still suffer at the ballot box
when the public’s normally mild hostility toward Congress becomes intense, at least if one
party controls both chambers and thus absorbs all the blame. Individual members cannot
do much about such sentiments by themselves, so they often focus on personal efforts that
can make a difference.

Serving Constituents
Recognizing that they hold their jobs at the sufferance of sometimes-fickle electorates,
members of Congress are highly responsive to their constituencies. Decisions on legisla-
tive issues are shaped by the potential need to explain and defend them in future cam-
paigns.19 This includes future primary campaigns; for many members now representing
districts safe for their parties, the biggest threat to reelection comes from primary chal-
lengers. Most members also spend a great deal of time back home, keeping in touch and
staying visible. They solicit and process casework, requests from constituents for infor-
mation and help in dealing with government agencies. A lost Social Security check? A
bureaucratic mix-up over veterans’ benefits? A representative or senator (or more pre-
cisely, their staff) is ready to help.

Vulnerable Senators
Although senators have engaged in many of the same constituency-building activities as
representatives, they have never been as successful in keeping their jobs, and now they,
too, find it more difficult to win states where the other party is ascendant. Since 1946
their overall rate of reelection, 80 percent, has left them three times more likely to lose
their seats than House incumbents. But because senators face reelection only one-third
as often, tenure in office tends to even out between the chambers. Even when Senate
incumbents do win, their margins of victory tend to be narrower than those of represen-
tatives. Senate incumbents win less consistently and typically by narrower margins for
several reasons. States (other than the seven with only one representative) are more popu-
lous and diverse than congressional districts and are thus more likely than congressional
districts to have balanced party competition. Senate races attract a larger proportion of
experienced, politically talented, well-financed challengers. They also usually fit media

248 Part II: The Institutions of Government

markets—formed by cities and their
suburbs reached by local TV and
radio stations and newspapers—
better than House districts, making
it easier for challengers to get out
their messages. And finally, sena-
tors are more readily associated with
controversial and divisive issues, and
they do not have the pressure of a
two-year election cycle to keep them
attuned to the folks back home.

Representation versus
Different electoral processes pro-
duce different forms of representa-

tion. In a party-centered electoral process, for example, legislators represent citizens by
carrying out the policies promised by the party winning a majority of seats. Legislators
know they will be held responsible by voters for their party’s performance in governing, so
ensuring the success of their party and the government takes top priority.

The candidate-centered electoral process that flourished during the long period of
Democratic control prior to 1994 gave members of Congress far more incentive to be
individually responsive than collectively responsible. Trends since then have reduced but
by no means eliminated this imbalance, which is a primary source of Congress’s collective
action problems. For example, electoral logic induces members to promote narrowly tar-
geted programs, projects, or tax breaks for constituents or campaign contributors without
worrying about the impacts of such measures on spending or revenues. Recipients notice
and appreciate such specific and identifiable benefits and show their gratitude at election
time. Because the benefits come at the expense of general revenues (money supplied by
the taxes that everyone pays), no one’s share of the cost of any specific project or tax break
is large enough to notice. Thus it makes political sense for members of Congress to pursue
local or group benefits that are paid for nationally even if the costs clearly outweigh the
benefits. Conversely, no obvious payoff arises from opposing any particular local or group
benefit because the savings are spread so thinly among taxpayers that no one notices.

The pursuit of reelection therefore makes logrolling—a legislative practice in which
members of Congress offer reciprocal support to each other’s vote-gaining projects or tax
breaks—an attractive strategy (covered in Chapter 2). But this situation creates a classic
prisoner’s dilemma. When everyone follows such an individually productive strategy, all
may end up in worse shape politically when shackled with collective blame for the over-
all consequences. Spending rises, revenues fall, the deficit grows, government programs
proliferate, and the opposition attacks the logrolling coalition—in practice, the majority

The 2018 midterm elections were the most nationalized in modern American
history and were centered on the highly polarizing figure of President Donald
Trump. Democrats’ ads sought to link the Republican to Trump and his policies in
areas where both were unpopular—illustrated by this ad run in Republican Barbara
Comstock’s suburban Virginia House district—while Republican candidates
trumpeted their support for Trump where he was popular. Comstock lost her
reelection bid.
Screenshot via Jennifer Wexton for Congress campaign ad/YouTube

249Chapter 6: Congress

party—for wastefulness and incompetence. Individual responsiveness leads to collective

Democratic candidates suffered across the board in 2010 as voters turned against the
aggregate consequences of collective irresponsibility: a government they perceived as too
big, too expensive, and too inept. To demonstrate that they were different, the triumphant
Republicans promised to shrink government, cut taxes, and change how the government
operates. In particular, many pledged to abstain from earmarks—items individual mem-
bers routinely insert into spending bills or revenue bills providing special benefits to their
states, districts, and campaign contributors. Although earmarks account for less than one-
half of 1 percent of federal spending, they are easy targets of public criticism—“pork bar-
rel” legislation always turns up projects of dubious worth—and was especially scorned
by the Republican Party’s very conservative Tea Party wing, so forgoing earmarks was
thought to have considerable symbolic importance. House Republicans adopted rules
inhibiting earmarks, but a true end to earmarking and pork-barreling would be a remark-
able transformation. Most members are convinced that delivering such local benefits pays
important electoral dividends. A comment by Michele Bachmann, R-Minn., a leading
voice of the Tea Party faction at the time, suggests that symbolism does not necessarily
trump more practical considerations: “Advocating for transportation projects for one’s
district does not in my mind equate to an earmark.”20 The budget bill passed early in 2018
was replete with provisions looking suspiciously like earmarks, and one estimate put their
price at $14.7 billion, more than five times as much as in 2014.21

Who Serves in Congress?
The people who win seats in the Senate and House are by no means “representative” of
the American people in any demographic sense. Almost all members have graduated
from college; law (41 percent) and business (39 percent) were the most common
prior occupations in the 115th Congress, followed by education (19 percent). A large
majority are professionals of one kind or another; only a handful have blue-collar
backgrounds. Most have served in lower elected offices. The true vocation of the average
member is, in fact, politics.

Women and racial minorities continue to be underrepresented in Congress, though
their numbers have been increasing (refer to Figures 6.4 and 6.5). In 1961 only three
African Americans and twenty women held House or Senate seats; by 1981 the number
of Black members had grown to seventeen, and only one more woman had been added.
Growth continued to be slow until 1992, when the number of African Americans and
Hispanics in the House increased sharply after the 1982 Voting Rights Act was interpreted
to require states to maximize the number of “majority-minority” districts when drawing
new district lines. The 1992 election also saw women candidates and campaign donors
mobilized in unprecedented numbers in response to an event widely publicized in 1991:
the insensitive handling by an all-male Senate committee of sexual harassment charges










r N




l U


























. M








l S


s o














, 4



r 1















s H




e D







r t




























. M








l S


s o














, 3

; d


r 1










252 Part II: The Institutions of Government

made by college professor Anita Hill against Supreme Court nominee Clarence Thomas.
In 2018, Donald Trump’s rhetoric and actions on health care, immigration, reproduc-
tive rights, sexual harassment, and the environment provoked a remarkable upsurge
in women’s electoral involvement on the Democratic side. Of the 254 nonincumbent
Democrats winning House nominations, 128 (50 percent) were women; counting incum-
bent Democrats, 181 of the party’s 427 nominees (42 percent) were women. About half of
them won, and thirty-five of the sixty newly elected Democrats are women. All of these
are record numbers.

After the 2020 elections, the Senate included twenty-four women, five Hispanics,
three African Americans, and two Asian Americans; the House included a record
123 women, fifty-five African Americans, thirty-eight Hispanics, and fifteen Asian
Americans. The congressional parties differ sharply in diversity. In the 117th Congress

(2021–22), women and members of
racial and ethnic minority groups made
up a majority of the House Democratic
membership. Yet nearly 90% of the
women in Congress are Democrats,
highlighting a strong partisan divide in
women’s representation. The 2020 elec-
tion did bring a dramatic increase in the
representativeness of the House GOP
caucus, with the number of Republican
women in the House doubling, includ-
ing five Republican women of color.
Overall, however, an overwhelming
majority of congressional Republicans
are straight white Christian men. The
congressional parties thus echo, to a
greatly exaggerated degree, demo-
graphic differences in their electoral
coalitions (covered in Chapter 12).

Congress remained overwhelm-
ingly white and male for so long because white males predominated in the lower-level
public offices and private careers that are the most common stepping-stones to Congress.
As women and minorities have continued, albeit slowly, to assume a larger share of state
and local offices and professional careers in law and business, their representation in
Congress has continued to rise as well.

The gender and racial makeup of Congress makes a difference. For example, Black mem-
bers led the fight for sanctions punishing South Africa for its apartheid system in the 1980s.
And the influx of women has made Congress far more attentive to issues of sex discrimina-
tion and sexual harassment.22 The stark differences in diversity between the Republicans and

Emblematic of the changes in the House arriving with the new class of
Democrats in the 116th Congress, Alexandria Ocasio-Cortez, a self-described
Democratic Socialist of Puerto Rican descent, defeated ten-term incumbent
Joseph Crowley in the primary and then went on to win the general election to
become, at twenty-nine, the youngest woman ever elected to Congress.
House Television via AP

253Chapter 6: Congress

Democrats elected to the 116th Congress may also contribute a demographic dimension
to the growing ideological polarization of the congressional parties.

Basic Problems of Legislative Organization
The Constitution established a basic framework for a national legislature, but today’s
Congress is the product of more than two centuries of institutional development.
Although the House and Senate have evolved into highly complex institutions with
remarkably elaborate and arcane rules, procedures, and customs, a logic underlies this
sometimes bewildering complexity. To understand how Congress reflects the diverse
and conflicting needs and intentions of its members, one must understand what repre-
sentatives and senators want to accomplish and what obstacles they have to overcome to
achieve their goals.

The delegates in Philadelphia created and empowered a national legislature—on
paper at least; it was up to members of Congress to make the words into an institutional
reality. To exercise the powers conferred on them by the Constitution, the House and
Senate had to solve some basic problems: how to acquire information, how to coordinate
action, how to resolve conflicts, and how to get members to work for common as well as
personal goals. As these problems have become more acute over the years, members of
Congress have scrambled to adapt the institution to cope with them more effectively while
recognizing that every solution raises problems of its own. The challenges that spurred
members to develop the modern Congress fall into two classes: problems besetting the
House and Senate as organizations and problems arising from the competing individual
and collective needs of members.

Need for Information
Legislation is only as effective as the quality of knowledge underlying its inception. For
example, a legislator cannot regulate the stock market sensibly without knowing how the
market works or attack environmental pollution effectively without knowing how pol-
lution is produced. As the United States has become more and more complex—socially,
economically, and technologically—and the activities of the federal government have
expanded, the informational demands on Congress have grown enormously.

Congress has responded with a solution common to the problem of performing com-
plex social tasks efficiently: division of labor and specialization. The division of labor
has given rise to the committee and subcommittee systems, large personal and com-
mittee staffs, and specialized research agencies that characterize the modern Congress.
Specialists are able to develop a deeper understanding of their domains. By becoming
specialists themselves or by drawing on the knowledge of other specialists, members of
Congress can make better-informed decisions, and Congress, in turn, becomes a more
effective institution. To provide the chamber with expertise, members must invest a lot of

254 Part II: The Institutions of Government

time and effort in mastering an area of specialization (as we learned earlier, public goods
are more attractive in their consumption than in their production). Congress compen-
sates members who master an area of specialization and supply specialized information
with enhanced influence in their area of expertise. For example, unparalleled mastery of
health care issues made Representative Henry A. Waxman, D-Calif., for many years the
most influential House Democrat in this important policy area. One problem, however,
is that specialists may dominate policymaking in their domains, shutting out the broader
viewpoints of other members. Thus, the efficiencies gained by a division of labor are paid
for by diminished participation in policymaking outside one’s specialty.

Coordination Problems
As noted in Chapter 1, any group of people trying to act in concert faces coordination
problems. Coordination becomes more difficult—and necessary—the greater the group’s
workload and the more elaborate its division of labor. As the volume and complexity of
Congress’s work have grown, so has its need for traffic management: dividing up the work,
directing the flow of bills through the legislative process, and scheduling debates and votes
on the floor. Coordination problems of this kind usually are solved by a group giving one
or several of its members the authority to coordinate—that is, take on the role of “traf-
fic cop.” In Congress party leaders serve this function, but procedures also shape policy.
Control over the agenda—deciding what gets voted on when—is a powerful legislative
tool. For example, a majority of House members probably would have preferred to cen-
sure rather than impeach Bill Clinton in 1998, but the Republican House leaders refused
to allow a vote on censure, leaving a vote for impeachment as the only alternative to letting
the president off completely. (Had they allowed a vote on censure, Clinton probably would
have avoided impeachment and trial in the Senate.) Members thus sacrifice a measure of
their autonomy in return for the gains in efficiency accrued by delegating agenda control
to party leaders.

Resolving Conflicts
Legislation is not passed until the majorities in both houses agree to its passage. The rich
pluralism of American society guarantees that resolving conflicts is a fundamental task
of any institution that reflects America’s diversity. Agreement requires successful politick-
ing: getting people who are pursuing divergent, even conflicting, ends to take a common
course of action. Even when there is a consensus on ends, Congress often must resolve
disagreements about means. During the 108th Congress (2003–2004), for example,
almost all members agreed that a major overhaul of intelligence gathering was needed to
combat terrorist threats, but leaders had to reconcile competing ideas about what should
replace the current system in order to reform intelligence. Disagreements that divide the
parties fundamentally can be extremely difficult to resolve, as the struggles over health
care policy attest.

255Chapter 6: Congress

Many of Congress’s rules, customs, and procedures are aimed at resolving or deflect-
ing conflicts so it can get on with the business of legislating. For example, when represen-
tatives speak on the floor of the House, all remarks are officially addressed to the Speaker,
making it less likely that debates will degenerate into personal confrontations. More sub-
stantively, members delegate the task of building legislative coalitions to party leaders,
who hold such positions by virtue of their demonstrated skills at negotiating legislative
deals. The political parties in Congress themselves serve as ready-made coalitions. Party
members agree on matters often enough to adopt a common label and to cooperate rou-
tinely on many—but by no means all—of the matters that come before the House and
Senate. The presence of ready-made coalitions resolves many conflicts in advance, reduc-
ing the transaction costs of negotiating agreements on legislation. The price, however,
is loss of autonomy to the party and of authority to leaders: individual members incur
greater conformity costs because they cannot always do what is politically best for them-
selves rather than their party.

Collective Action
Everyone who wins a seat in the House or Senate wants to belong to a well-informed,
effective legislature capable of fulfilling its constitutional mandate. Moreover, senators
and representatives run under party labels and so have a stake in their party’s reputa-
tion. But all of them have personal interests as well: winning reelection or advancing to
higher office by pleasing constituents and campaign contributors, enacting pet policies,
and attaining influence and respect in Washington. The problem is that what members do
to pursue individual goals—tax breaks for local firms, special projects for their constitu-
ents, maintaining their ideological purity by rejecting compromise—may undermine the
reputation of their party or of Congress as a whole. The tension between individual and
collective political welfare—the standard prisoner’s dilemma—pervades congressional
life. Congress has responded to the problem by developing devices such as the committee
system that give members individual incentives to work for collectively beneficial ends. As
noted, members who contribute to Congress’s performance by becoming well informed
about issues in their subcommittee’s jurisdiction are rewarded with preeminent influence
over policy in that area.23 But as lawmaking has increasingly become centralized in the
congressional parties in recent years, the incentives for specialization have weakened—
and not to Congress’s collective benefit.

Transaction Costs
In trying to meet its many challenges, Congress must cope with another pressing prob-
lem: high transaction costs. These costs, as noted in Chapter 1, are literally the price of
doing politics—the time, effort, and bargaining resources (favors to be exchanged) that go
into negotiating agreements on action in the absence of agreement on the purposes of the
action. Because many of the transaction costs involved in building legislative coalitions

256 Part II: The Institutions of Government

are unavoidable—such as the conflicts to be ironed out, compromises to be arranged, and
favors to be traded—Congress has organized itself to reduce other transaction costs. One
way is the use of fixed rules to automate decisions. For example, the seniority rule, by
routinely allocating first choice in committee chairs, offices, and committee assignments
to majority-party members who have served longest, reduces the time and energy mem-
bers would otherwise put into competing for these valued positions. Another way is to fol-
low precedent; battles over legislative turf, for example, are minimized by strict adherence
to precedent in assigning bills to House committees. The pressing need to reduce trans-
action costs explains, then, why Congress does its work within an elaborate structure of
rules and precedents. Like any attempt to reduce transaction costs, following precedent or
seniority can have its own downside, for it inevitably increases the power of some mem-
bers at the expense of others. Rules are never politically neutral.

Time Pressures
The pressure to avoid unnecessary transaction costs is intensified by the ticking clock—
both within the one-year session of Congress and over the two-year tenure of each
Congress. The chief source of Congress’s authority is its power of the purse over gov-
ernment revenue raising and spending. But if it fails to enact a federal budget in some
form each year (or session), large portions of the federal government have to shut
down, something that has actually happened twenty-one times in the past fifty years,
on nine occasions for more than a week.24 As budgets have grown larger, broader in
scope, and, in recent years, more hotly contested, Congress often has found it difficult to
enact them on schedule. Other legislation has to pass through all the hurdles (outlined
later in this chapter) within the two-year life of a Congress. Bills in the pipeline but not
enacted by the end of the second session of one Congress must be reintroduced in the
next Congress.

The organization and rules of the House and Senate have evolved over two centuries
through the accumulation of solutions deliberately chosen to overcome the pressing chal-
lenges just described (as well as, of course, to serve the immediate political needs of the
majority then in power).25 The much larger House experiences organizational problems
more acutely than the Senate. Senators can get away with looser organization and retain
more individual autonomy and equality simply because there are fewer of them. Their
counterparts in the House, to solve their coordination problems, have to follow stricter
rules of procedure and tolerate greater control by leaders.

Organizing Congress
To preserve the House and Senate as the powerful legislative bodies envisioned in the
Constitution, members of Congress have had to devise means to overcome the formi-
dable barriers to effective collective action discussed in the previous section. The crucial

257Chapter 6: Congress

institutional structures they have created to exercise, and therefore preserve, Congress’s
power in the federal system are the party and committee systems.

The Parties
Decisions in the House and Senate are made (with a few important exceptions) by
majority vote. Majorities not only enact bills but also set rules, establish procedures,
choose leaders, and decide how to organize their respective houses. This reality creates
powerful incentives for members of Congress to join and maintain durable coalitions—
that is, political parties (for a broader analysis of the logic of party formation, covered in
Chapter 12). What individual members give up in freedom to go their own way is more
than made up for by what they can gain by cooperating with one another.

Parties do not arise through spontaneous, voluntary cooperation, however. Like other
coalitions, political parties are formed when people recognize it is in their best interests to
cooperate despite their disagreements. Party coalitions are assembled and maintained by
party leaders. But leaders cannot lead without effective means to resolve conflicts, coordinate
action, and induce members to cooperate when they are tempted to do otherwise. Members,
in turn, must sacrifice independence by conceding some authority to party leaders. Yet as
we noted in Chapter 1, when a group delegates authority to a leader to achieve coordination
and reduce transaction costs, it risks incurring conformity costs and agency losses.

Members of Congress, aware of the risks, relinquish autonomy only so far as neces-
sary, which accounts for the notable differences in the evolution of party leadership
between the House and Senate as well as the changes over time in the power of House and
Senate leaders.26

Development of Congressional Parties
Parties began to form in the first session of the First Congress. A majority of members
in the House favored the program for national economic development proposed by
Alexander Hamilton, President George Washington’s secretary of the Treasury, and
worked together under his leadership to enact it. James Madison, a member of the House,
and Thomas Jefferson, the secretary of state, led the opposition to what they saw as an
unwarranted expansion of federal activity. These “factions” soon had names—Hamilton’s
Federalists and Jefferson’s Republicans (later called Democratic-Republicans and then
Democrats)—and party competition was under way. (Chapter 12 offers a fuller account of
these developments.)

When the House and Senate divided into parties, congressional and party leader-
ship merged. Formal leadership was established more quickly and more powerfully in
the House because, since it was the larger and busier body, its collective action problems
were more acute. Elected by the reigning majority, the Speaker of the House became the
majority’s leader and agent. Speakers were given the authority to appoint committees,
make rules, and manage the legislative process on the majority party’s behalf.

258 Part II: The Institutions of Government

Speaker of the House
Centralized authority reached its peak under
Thomas Brackett “Czar” Reed, a Republican
from Maine, who served as Speaker in the Fifty-
First (1889–1890), Fifty-Fourth (1895–1896),
and Fifty-Fifth (1897–1898) Congresses. Reed
appointed all committees and committee chairs,
exercised unlimited power of recognition (that
is, decided who would speak on the floor of the
House), and imposed new rules that made it
much more difficult for a minority to prevent
action through endless procedural delays. He
also chaired the Rules Committee, which con-
trolled the flow of legislation from the other
committees to the floor of the House.

Although denounced by his opponents as
a tyrant, Reed could not have amassed so much
power without the full support of the Republican
House majority. They were willing to delegate
so much authority for two reasons. First, dis-
agreements within the Republican Party were, at
the time, muted; no important faction thought
its interests could be threatened by a powerful
leader allied with a competing faction. Second,
service in the House had not yet become a career;
the average member served only two terms.
Without long-term career prospects and accus-
tomed to party discipline, most members had lit-
tle reason to object to strong leadership.

But once these conditions no longer held,
the House revolted. Republican Speaker Joseph
Cannon of Illinois (served 1903–1911) made
the mistake of offending the progressive faction

of the Republican Party that had emerged since Reed’s day. In response, the Republican
insurgents formed an alliance with Democrats who voted in 1910 to strip the Speaker of
his power to appoint committees and chairs, forced him off the Rules Committee, and
limited his power of recognition. The increasingly career-oriented membership filled
the power vacuum with a more decentralized and impersonal leadership structure, mak-
ing seniority the criterion for selecting committee chairs. By weakening the Speaker,
House members in effect chose to tolerate higher transaction costs to reduce their
conformity costs.

Joseph Cannon was the last of a generation of powerful Speakers
of the House of Representatives. During his tenure as Speaker
of the House, “Uncle Joe” swatted many an opponent. Too many
of his victims were fellow Republicans, however, and in 1910
thirty-six of them joined with Democrats in the historic revolt that
dismantled the strong Speaker system and decentralized House
Library of Congress/Corbis/VCG via Getty Images

259Chapter 6: Congress

The degree of consensus within a party continues to affect how much authority party
members are willing to delegate to party leaders. In the 1970s, for example, the Democrats
strengthened the hand of the Speaker and curbed the independence of committee chairs
by making them subject to election by secret ballot in the Democratic Caucus (the orga-
nization of all House Democrats). The party had grown more cohesive as its conserva-
tive southern wing shrank (for reasons explained in Chapter 12), and so its members saw
smaller potential conformity costs in centralizing. By the 1990s congressional Democrats
were more unified than they had been in decades.27

Republicans granted even more authority to their leaders when in 1995 they took
control of the House for the first time in forty-two years. Unified by the party’s Contract
with America, House Republicans made Newt Gingrich the most powerful Speaker since
Cannon. At his behest, the Republican Conference (the Republican counterpart of the
Democratic Caucus) ignored seniority in appointing committee chairs, ratifying without
dissent the slate proposed by Gingrich. The Speaker also had a strong say in all committee
assignments, which he used to reward loyal junior members. The new majority party also
adopted a rule limiting committee chairs to three two-year terms, preventing anyone from
building an independent committee domain. House Republicans gave their leader an
unusually strong hand to overcome their coordination and other collective action prob-
lems because they believed that keeping their promise to act on every item in the Contract
with America within one hundred days of taking office was crucial to their and their par-
ty’s future electoral fates. By 1997, however, House Republicans’ unity had frayed badly,
and one faction mounted a quickly aborted attempt to depose the Speaker. Gingrich hung
on until Republican members, angry at the party’s losses in the 1998 midterm election,
forced him to resign—a pointed reminder that party leaders, as the majority’s agents, are
subject to dismissal if they do not satisfy their principals.

Leading the Democrats in opposition to the Bush administration after they won
control of the 110th Congress (2007–2008) and in alliance with the Obama administra-
tion during the 111th Congress, Speaker Nancy Pelosi presided over the most unified
Democratic majority in at least fifty years. Her leadership was crucial to Obama’s major
legislative victories on economic stimulus, health care reform, and economic regulation
legislation. The Republican majority after 2010 under Pelosi’s successor, John Boehner,
also sought to present a highly unified front on the House floor, although Boehner often
found it hard to resolve intraparty disputes between the party’s conventional conserva-
tives and its more radically antigovernment faction associated with the Tea Party and,
later, the Freedom Caucus. On several occasions during the 112th and 113th Congresses
this faction’s intransigence left Boehner no choice but to rely on a majority of Democratic
votes to pass important legislation, breaking an unwritten rule that any legislation not
supported by a majority of the House majority party will not be brought up for a vote.
Under steady fire from his right, Boehner resigned in 2015, handing the chore of man-
aging the fractious Republican majority to Paul Ryan, who found it no easier than
Boehner and retired from Congress in 2018. Pelosi is back leading the energized but far

260 Part II: The Institutions of Government

from unified Democratic majority in the 116th Congress, but she had to promise to limit
the terms she and other senior party leaders would serve to quell internal opposition
to her Speakership. In sum, Congress is subject to what political scientists have labeled
conditional party government, meaning that the degree of authority delegated to and
exercised by congressional party leaders varies with—is conditioned by—the extent of
election-driven ideological consensus among members.28

Increased Partisanship
The decline and resurgence of congressional partisanship since the 1950s is evident in
Figure 6.6. The proportion of “party unity” votes—those on which the party majorities
took opposite positions—has increased since the 1970s (although more steeply and uni-
formly in the Senate than in the House). More importantly, as the party coalitions have
become more homogeneous, the proportion of representatives and senators of both par-
ties who vote with their party’s majority on these party unity votes has risen steadily and
was about 15 percentage points higher during the three most recent administrations than
it was during the Nixon-Ford administration.

As the congressional parties became more unified, they also became more polar-
ized along ideological lines. The ideological gap between the two parties in both houses
of Congress has widened appreciably since the 1970s (shown in Figure 6.7) and reached
its widest point since Reconstruction in the 116th Congress (2019–2020). Republicans
have grown, on average, steadily more conservative, accounting for most of the polar-
ization. But Democrats have also become more liberal as their party’s conservative
southern members were gradually replaced in Congress by Republicans, leaving the
remaining southern Democrats ideologically more similar to other congressional
Democrats. Ideological polarization thus helped to unite the parties internally, separate
them from each other, and strengthen party leaders.

How has this rising polarization affected lawmaking in recent congressional sessions?
When control of government is divided between the two parties, the wide gulf between
their ideologies has been difficult to bridge. Whether measuring legislative productivity
by the total number of laws passed or by the passage of substantive, rather than ceremo-
nial, bills, the congressional sessions held since the 2010 elections have included four out
of the five least productive sessions in modern history.29

Party Organization
The majority party in the House is led by the Speaker of the House, whose chief assistants
are the majority leader and the majority whip (Table 6.1 lists the major-party offices
and organizations in the House and Senate). The structure of the minority party, the
Republicans in the 117th Congress (2021–2022), is similar to that of the majority party
but without the Speaker; the minority leader is its head. The party whips head up the whip
organization—the members who form the communication network connecting leaders
with other members—whose purpose is to help solve the party’s coordination problems.

261Chapter 6: Congress

� FIGURE 6.6 Rising Party Unity in Congress




















92 91


























. B





. B










House of Representatives

43 43

45 45 48

58 56


78 75 74 75
78 82

88 89

80 77

72 72
80 81

88 89 88














Percentage of party
unity votes

Percentage of Democrats
voting with party majority

Percentage of Republicans
voting with party majority















. B





. B





Source: Compiled by authors from CQ Weekly reports.

Note: Party unity votes are those votes on which party majorities took opposite positions.

262 Part II: The Institutions of Government

� FIGURE 6.7 The Widening Ideological Gap between the Parties











Ideological Positions of House Party Coalitions, 80th–116th Congresses

Democrats Republicans Nonsouthern Democrats Southern Democrats











































































































































































































































































Ideological Positions of Senate Party Coalitions, 80th–116th Congresses

Democrats Republicans Nonsouthern Democrats Southern Democrats

Source: Jeff Lewis, “Polarization in Congress,” at

263Chapter 6: Congress

(The term whip comes from Great
Britain, where the “whipper-in”
keeps the hounds together in a pack
during a foxhunt.) In addition to
these official party committees, the
Rules Committee is, in effect, an
instrument of the majority party.

Party members give House
party leaders resources for inducing
members to cooperate when they
are tempted to go their own way as
free riders (for example, by breaking
ranks on roll-call votes to enhance
their own electoral fortunes). These
resources mainly take the form of
favors the leaders may grant or with-
hold. For example, party leaders
have a strong voice in all committee
assignments (officially the prov-
ince of the Steering Committees);
Speaker Boehner used this influence
prior to the 113th Congress (2013–
2014) to strip four Republicans of
their plum committee assignments
for bucking his leadership too fla-
grantly and as a warning to other
potentially disloyal members.30
Leaders also control the legisla-
tive agenda. Because a place on the
agenda is a scarce resource, schedul-
ing decisions determine the fates of
many bills. Leaders also choose how
much of their own time, energy, and organizational resources to devote to each legislative
proposal. In the past, they have also controlled access to pork, routinely using earmarked
projects to win support of wavering members; Boehner’s 2011 pledge to ban earmarks
thus deprived him of an important customary bargaining resource.31 Party leaders can
also help with reelection campaigns, especially the fund-raising component. Party leaders
are therefore in a position to make it easier (or more difficult) for members to attain posi-
tions of influence, shape policy, and win reelection.

House party leaders are members’ agents, however—not their bosses. They do not
hire and fire party members; voters do, and so voters come first. Members, then, choose
the style of leadership they believe will best serve their goals. Party leaders are elected or

TABLE 6.1 Party Committees and Leaders in Congress




Majority leader

Majority whip

Caucus (all Democrats)

Steering Committee

Policy Committee

Democratic Congressional
Campaign Committee

Minority leader

Minority whip

Conference (all Republicans)

Steering Committee

Policy Committee

National Republican
Congressional Committee



President pro tempore

Majority leader

Assistant majority leader (whip)

Conference (all Republicans)

Policy Committee

National Republican Senatorial

Minority leader

Assistant minority leader

Conference (all Democrats)

Policy Committee

Steering and Outreach

Democratic Senatorial
Campaign Committee

Source: Compiled by authors.

Note: Table covers the 116th Congress (2019–2020).

264 Part II: The Institutions of Government

reelected to their positions at the beginning of every Congress, so the principals can regu-
larly review their agents’ performance. In the pre-Gingrich decades when Democrats held
a majority of seats, they chose leaders, such as Thomas “Tip” O’Neill of Massachusetts
(majority leader, 1973–1977; Speaker 1977–1987), who were experts on procedure
rather than policy and who cared more about building successful coalitions than about
achieving specific legislative goals. But when the Republicans took over the majority in
1995, Speaker Gingrich pursued a legislative agenda much more policy and ideologically
focused than those undertaken by the Democratic Speakers before him. This has since
become the norm for Speakers of both parties.

For the minority party in the House, legislative leadership is less crucial because the
party’s legislative role has usually been modest. When the party balance is very close,
minority leaders can sometimes influence legislation by forming alliances with more
moderate members of the majority party, although this has happened rarely in recent
Congresses. When the majority enjoys a wider margin, minority leaders can do little more
than oppose and attack the majority to position their party for future electoral battles.
This leaves them in a bind when a president of their party sits in the White House, because
the president has to cut deals with the majority to accomplish anything at all. When the
other party holds the White House, they are freer to engage in unalloyed opposition, a
strategy for winning a majority and moving up to the Speakership pursued successfully by
Gingrich, Pelosi, and Boehner, and again by Pelosi.

The increasing partisanship of recent decades does not mean that every vote, even
on landmark legislation, is cast along party lines. The massive $2 trillion COVID-19 aid
package, covered in greater depth in Chapter 15, represented “a bipartisan agreement
in partisan times,” according to leading congressional scholar Sarah Binder. With lead-
ers in both parties eager to take action to address the pandemic—and eager to avoid

blame if they fell into gridlock—
Democratic leaders in the House
came together with the GOP-led
Senate and the Trump adminis-
tration to agree to a package that
included each party’s priorities and
delivered strong votes in favor of it.
Although debate over the bill grew
uncharacteristically acrimonious
in the Senate—retiring Republican
senator Pat Roberts of Kansas
lamented that “this is not the Senate
I came to twenty-four years ago.
This blanket of comity and respect
is pretty threadbare right now”—
once a deal was reached, the vote
was unanimous. Reflecting on that Lost Center COLOR by Christopher Weyant, The Hill

265Chapter 6: Congress

bipartisan vote, Senate majority leader Mitch McConnell boasted that “the Senate has
pivoted from one of the most contentious periods in our nation’s history to passing this
rescue package 100 to nothing.”32

Parties and Party Leaders in the Senate
Over the years the Senate has been slower than the House to develop formal leadership
positions, and senators have never delegated as much authority to their leaders as have
representatives. Senators initially saw themselves as ambassadors from sovereign states
and as such could accept no less than equal rights with one another. In the years since, they
have retained wide freedom of individual action because, with its smaller size, the Senate
is able to get by without elaborate procedural shackles.*

Under the Constitution, the vice president is the presiding officer of the Senate. The
designated president pro tempore presides when the vice president is absent. But neither
office has a real leadership role—after all, the vice president, who seldom presides, is not
chosen by the Senate, and the president pro tempore, as the Latin term suggests, is for-
mally a temporary position. In fact, in the first few Congresses a new president pro tem-
pore was elected every time the vice president was away. In practice, no one led the Senate
during the pre–Civil War period. Parties formed in the Senate almost from the start, but
party members were little inclined to delegate authority. The party caucuses did not take
full control of committee appointments until 1846, after which they avoided intraparty
conflicts over committee control by resorting to a strict seniority rule. Not until the end
of the nineteenth century did senators concede the means to enforce party discipline—on
procedural matters only—to party leaders. The positions of majority leader and minority
leader were not formalized until 1913.

The power and influence exerted by Senate leaders have depended largely on their
personal political skills and the extent of intraparty divisions. Lyndon Johnson, who led
the Senate Democrats from 1953 until resigning to become vice president in 1961, exer-
cised extraordinary influence over the Senate through skillful persuasion and manipu-
lation. The resources at his disposal were no greater than those of other Senate leaders,
but he used them to greater effect. No majority leader has since matched Johnson’s fire or
authority, and more recent leaders have had a much more divided and contentious Senate
to manage. Still, party leadership in the Senate remains more collegial and less formal than
in the House. The minority party has greater influence in the Senate because so much of
that body’s business is conducted under unanimous consent agreements negotiated by
party leaders. These agreements, which can be killed by a single objection, might govern,
for example, the order in which bills are considered and the length of debate allotted to
them. Unanimous consent agreements serve as only the most extreme examples of the
general rule: the capacity of House and Senate party leaders to lead depends largely on the
willingness of party members to follow.

*The Senate began with twenty-six members and did not reach one hundred until 1959; the House already had
exceeded one hundred members by 1793.

266 Part II: The Institutions of Government

Other Groups in Congress
Although parties are by far the most important of Congress’s coalitions, members have
formed dozens of other groups. Some are explicitly ideological (Republican Study
Committee, Progressive Caucus, New Democrat Coalition, Blue Dog Coalition, Tea
Party Caucus, Freedom Caucus). Others are based on demographics (Black Caucus,
Hispanic Caucus, Asian Pacific American Caucus, Caucus for Women’s Issues).
Bipartisan groups form around shared regional interests (Mississippi River Caucus,
Western Caucus, Ohio River Basin Caucus) and economic concerns (Steel Caucus,
Automotive Caucus, Entertainment Industries Caucus, Biotechnology Caucus). Other
groups focus on specific issues (Second Amendment Caucus, Victims’ Rights Caucus,
Human Rights Caucus). More than thirty foreign countries enjoyed the attention of a
congressional caucus in the 115th Congress.

Such groups give members better access to information and allies on issues of special
concern to them (or their constituents) that do not fit neatly into regular party or com-
mittee categories. The groups reflect the value of ready-made alliances in a system where
success depends on building majority coalitions.

The Committee Systems
The committee systems of the House and Senate are the second organizational pillar
upholding the institutional power of Congress in the federal system. Although committee

power has at times been used to frus-
trate party majorities and leaders,
committees are ultimately subject
to the majority party, and the com-
mittee and party systems are closely
integrated and mutually dependent.
House committees, like House party
leaders, are more powerful than
their counterparts in the Senate,
again reflecting the need for tighter
organization in the larger body.

Evolution of
Congressional Committees
The first Congresses delegated
authority to committees sparingly.
Instead, the House would turn itself
into a Committee of the Whole
(sitting as a committee, the House
operates under a more flexible set of
rules), frame a piece of legislation,

Although intense partisan rivals, Chuck Schumer, D-N.Y., and Mitch McConnell,
R-Ky., confer regularly on procedural matters. Part of the reason is that any leader
of the majority party knows that their party could slip into the minority in the next
election. The surprising results of the Georgia special election held on January 5,
2021, shifted McConnell into the position of minority leader and made Schumer
the Senate majority leader.
Bill Pugliano/Getty Images

267Chapter 6: Congress

elect a temporary committee to draft the bill, then debate and amend the bill line by line.
After reassuming its guise as the House, it would vote on final passage.

From the start, this process was intolerably cumbersome. One early member, Fisher
Ames of Massachusetts, likened it to trying to make a delicate etching with an elephant’s
foot.33 Thus, the House began to delegate more and more work to permanent committees.
Ten were in place by 1809, twenty-eight by 1825. Transaction costs were further reduced
by having committee members appointed by the Speaker rather than elected. As the
Speaker emerged as leader of the majority party, appointments became partisan affairs,
and choice committee assignments became rewards for party loyalty and bargaining chips
in campaigns for the Speakership.

The Senate was slower to set up permanent committees. Despite their smaller num-
bers and lighter workload, senators also found they were spending too much time on
electing a new committee to draft each bill, and the Senate began to accumulate stand-
ing committees—those that exist from one Congress to the next unless they are explic-
itly disbanded. The initial twelve were established in 1816; by 1841 there were twenty-two.
The Senate also was slower to delegate legislative action to committees and has never gone
as far in this direction as the House. After the Senate’s parties assumed the right to make
committee assignments, seniority became the criterion for selecting committee chairs:
the office was awarded to the majority-party member with the longest term of service on
the committee. Reducing transaction and conformity costs, the seniority rule avoided
two unwelcome alternatives: election, which would have led to divisive, time-consuming
intraparty squabbles, and appointment by party leaders, which would have given the
leaders more power than senators thought desirable or necessary.

Types of Committees
The standing committees of the House and Senate embody Congress’s division of legisla-
tive labor. Standing committees have fixed jurisdictions (that is, they always deal with the
same legislative topics) and stable memberships, both of which facilitate specialization.
Once appointed, a member in good standing (that is, one who has not flagrantly annoyed
party leaders) can expect to keep the seat unless his or her party suffers large electoral
losses. Party ratios on committees generally match party ratios in the House and Senate. A
House party with a narrow overall majority usually gives itself somewhat larger commit-
tee majorities, and it always accords itself extra seats on the most important committees.
The job security associated with standing committees gives committee members both the
motive and the opportunity to become knowledgeable about policy issues under their
committee’s jurisdiction. Expertise brings influence—other members defer to the judg-
ment of committee experts they trust—and therefore a chance to make a real difference in
at least one area of national policy.

Although committee membership is generally stable, changes occur when leg-
islators seize the opportunity to move up to the committees deemed more important
and desirable than the others. At the top of the heap in both chambers are the money

268 Part II: The Institutions of Government

committees—the Ways and Means and the Appropriations Committees in the House,
the Finance and the Appropriations Committees in the Senate—because their activi-
ties are so central to Congress’s main source of power in the federal system, its control
over the budget. The House and Senate Budget Committees share some of this prestige.
Seats on the Senate Foreign Relations and Judiciary Committees also are in demand
because of the Senate’s special authority over treaties and diplomatic and judicial
appointments. In the House the powerful Rules Committee, which controls the flow of
legislation from committees to the floor, is especially attractive. Among the least desir-
able committees are those dealing with the internal administration of Congress, partic-
ularly its members’ ethics; many members feel uncomfortable sitting in judgment on
their colleagues.

Committee Assignments
Assignments to committees are made by party committees under the firm control of
senior party leaders and are ratified by the party membership. Members pursue commit-
tee assignments that allow them to serve special constituent interests as well as their own
policy and power goals. For example, the Agriculture Committees attract members from
farm states, and the Armed Services Committees attract members from regions with large
military installations.

Because party leaders want to keep their followers in office, they are responsive to
arguments that a particular assignment will help a member win reelection. Moreover,
when members are assigned to the committees that best serve their personal and politi-
cal interests, they will take committee work more seriously, making a larger contribution
to their party’s overall performance. The danger is that committees may become stacked
with members whose views do not represent those of their party’s majority. By and large,
party leaders have managed to avoid this problem by judicious distribution of assign-
ments, especially to the committees whose jurisdictions are most important to the party.
A party’s committee members are, like party leaders, the party’s agents, and party majori-
ties use their ultimate control over committee assignments to keep their agents responsive
to the party’s desires.34

Most committees are divided into subcommittees, many of which also have fixed
jurisdictions and stable memberships. Like full committees, subcommittees encourage
specialization and, at the same time, reward members who develop expertise with spe-
cial influence over their own small pieces of legislative turf. Both committees and, in the
Senate, subcommittees come with staffs of experts to help members do their work. Most
committee staffers report to committee and subcommittee chairs; the ranking minority
committee members control a much smaller set of staff assistants. In addition to the
standing committees, Congress also forms special committees and select committees
appointed to deal with specific problems and then disappear—though some can last for
decades as problems endure.

269Chapter 6: Congress

Joint Committees
These are permanent committees composed of members from both chambers; the com-
mittee leaderships rotate between the chambers at the beginning of each newly elected
Congress. Joint committees gather information and oversee executive agencies but do
not report legislation. One joint committee (Library) oversees the Library of Congress,
the U.S. Botanic Garden, and public statuary; another (Printing) oversees the U.S.
Government Printing Office and the arrangement and style of the Congressional Record,
which publishes all of the speeches and debates on the floors of the House and Senate.
Conference committees are appointed to resolve differences between the House and
Senate versions of bills (refer to section “Making Laws” in this chapter). The committees of
the 116th Congress are listed in Table 6.2.

Committee Power
A century ago House committees were dominated by the Speaker, who appointed commit-
tee members and chairs. The revolt against Speaker Cannon in 1910 effectively transferred
control over committees to committee chairs, who, under the altered rules, owed their
positions to seniority, not loyalty to their party or its leaders. By the 1950s both chambers
were run by a handful of powerful committee chairs who could safely ignore the wishes of
party majorities. Conservative southern Democrats, continually reelected from one-party
strongholds, chaired the most powerful committees and cooperated with Republicans to
thwart policies supported by a majority of Democrats, especially in the area of civil rights.
The rules allowed chairs to run committees like dictators, and some of them did.

In 1959 frustrated younger liberals formed the Democratic Study Group (DSG) to
take on the conservative Democrats, hoping that they could make up in numbers what
they lacked in institutional clout. Over the next decade the DSG grew large enough to take
over and revitalize the Democratic Caucus. The most important changes occurred after
the 1974 election, when the public reaction to the Watergate scandal brought seventy-four
new Democrats, eager for action and disdainful of seniority, into the House. At their insti-
gation, the Democratic Caucus adopted a rule that forbade any individual from chairing
more than one committee or subcommittee; this way, many more members could enjoy
this privilege. Committee members and the caucus, rather than chairs, assumed control
over committee rules, budgets, and subcommittee organization. Committee nominations
were transferred from Democrats on the Ways and Means Committee, who had held this
authority since the revolt against Cannon, to the caucus’s own new Steering and Policy
Committee.* The caucus itself elected committee chairs by secret ballot (secrecy removed
the threat of retaliation). In 1975 the caucus actually deposed three committee chairs, all

*The Steering and Policy Committee was subsequently split into a Steering Committee, which retained the
authority to make committee assignments, and a separate Policy Committee.

270 Part II: The Institutions of Government

TABLE 6.2 Committees of the 116th Congress



House of Representatives

Standing Committees

Agriculture 26D:21R 6

Appropriations 30D:23R 12

Armed Services 31D:26R 7

Budget 19D:14R —

Education and Labor 28D:22R 4

Energy and Commerce 31D:24R 6

Ethics 5D:5R —

Financial Services 34D:26R 5

Foreign Affairs 26D:21R 6

Homeland Security 18D:13R 6

House Administration 6D:3R —

Judiciary 24D:17R 5

Natural Resources 23D:19R 5

Oversight and Reform 24D:18R 6

Rules 9D:4R 2

Science, Space, and

22D:15R 5

Small Business 13D:10R 5

Transportation and

37D:30R 6

Veteran’s Affairs 16D:12R 4

Ways and Means 25D:17R 6

Select Committees

Permanent Select
Committee on

13D:9R 4




Standing Committees

Agriculture, Nutrition,
and Forestry

11R:10D 5

Appropriations 16R:15D 12

Armed Services 14R:13D 7

Banking, Housing, and
Urban Affairs

13R:12D 5

Budget 11R:10D —

Commerce, Science, and

14R:12D 6

Energy and Natural

11R:9D 4

Environment and Public

11R:10D 6

Finance 15R:13D 6

Foreign Relations 12R:10D 7

Health, Education, Labor
and Pensions

12R:11D 3

Homeland Security and
Governmental Affairs

8R:6D 3

Indian Affairs 7R:6D —

Judiciary 12R:10D 6

Rules and Administration 10R:9D —

Small Business and

10R:9D —

Veterans’ Affairs 7R:8D —

Select Committees

Select Committee on

3R:3D —

Select Committee on

10R:9D —

Special Committee on

8R:7D —

Joint Economic

6R:4D —

Source: Compiled by authors.

Note: The two independents in the Senate organize with the Democrats and are included in the Democratic totals.

271Chapter 6: Congress

elderly southern conservatives, underlining the new reality that the party’s majority, not
strict seniority, would now have the final say in who runs committees.

These changes produced a more fragmented and decentralized committee system in
which fully half of the Democrats in the House chaired a committee or subcommittee.
Although members benefited individually, they found it more difficult to act collectively.
The simultaneous strengthening of the Speaker’s authority, described earlier, logically
complemented these changes. The party leaders may have found the task of coordination
more difficult, but they also were given more tools (for example, control of nominations to
the Rules Committee) to carry it out. The net effect was a strengthened party capacity for
collective action and a decline in the power of conservative southern Democrats.

The new Republican majority that took over the House in 1995 revised committee
rules to ensure that the legislative agenda outlined in its Contract with America would
move swiftly to enactment. The new rules gave committee chairs greater control over
subcommittees by authorizing them to appoint all subcommittee chairs and control
the work of the majority’s committee staff. But committee chairs themselves now had to
report to the Speaker and were limited to three consecutive terms (six years) as chair. All
these changes gave the Republican majority more control over its committees than any
House majority had exercised since the early years of the twentieth century. Since then,
Republicans have maintained term limits but otherwise usually respected seniority in
appointing chairs; the Democrats follow seniority in choosing committee chairs and do
not limit their terms.

In the House, does international trade policy fall within the jurisdiction of the Energy and
Commerce Committee or the Foreign Affairs Committee? Should education programs
for veterans be handled in the Senate by Veterans Affairs or by Health, Education, Labor,
and Pensions? Where does something like Homeland Security, which affects virtually
every aspect of American life—transportation, energy, infrastructure, international trade,
administration of justice, national defense—fit? Moreover, such technical issues are over-
laid with political agendas. Committees and subcommittees compete for jurisdiction over
important policy areas, but the supply of legislative turf is always insufficient to meet the
demand. Thus, it is not surprising that the House and Senate have altered the number and
jurisdictions of their committees from time to time; nor is it surprising that such changes
have been highly contentious.

Over the past century, the House and Senate have trimmed their committee sys-
tems several times, notably in the Legislative Reorganization Act of 1946, which sharply
reduced the number of standing committees in both chambers (from thirty-three to fif-
teen in the Senate; from forty-eight to nineteen in the House). The act also rearranged
committee jurisdictions to reduce the overlap and confusion and to make the House
and Senate systems more similar. Reductions were achieved by consolidation, however,
so many former committees simply became subcommittees. The most recent committee

272 Part II: The Institutions of Government

changes occurred in 1995, when the victorious House Republicans abolished three
standing committees and made other modest alterations in committee jurisdictions.

The political problem with trying to distribute committee jurisdictions more sensibly
is that changes redistribute power and upset long-established relationships among com-
mittee members, administrative agencies, and interest groups. Nevertheless, Congress
must rationalize jurisdictions occasionally, or the emergence of new issues will lead to
turf battles, overlapping jurisdictions, uneven workloads, and confusion. Party leaders
regularly cope with the problem of multiple jurisdictions by using multiple referrals—
that is, sending bills, in whole or piece by piece, to several committees at the same time
or in sequence. In the 108th Congress (2003–2004), for example, a bill to reorganize
government intelligence operations was sent to thirteen House committees. In recent
Congresses, about 20 percent of all bills and 40 percent of major bills have been subject to
multiple referrals in the House.35

The Money Committees
The “power of the purse” has inspired the most contentious jurisdictional fights. In the
earliest years of government, revenue and spending bills were handled by Ways and
Means in the House and Finance in the Senate. Then, during the 1860s, the spending
power was transferred to a separate Appropriations Committee in each house to help
deal with the extraordinary financial demands of the Civil War. Other committees in
both houses later broke the Appropriations Committees’ monopoly on spending, and by
1900 authority over national finances was spread among nearly twenty House and Senate
committees. In the House this devolution of authority was not such a great impediment
to action when powerful Speakers dominated the chamber, but a few years after the revolt
against Cannon the Republican House majority underlined its commitment to parsimony
by restoring the Appropriations Committee’s monopoly. The Senate followed suit in 1922.

Since then, legislative spending has been a two-step process in each chamber. In the
first step the committee with jurisdiction over a program authorizes expenditures for it,
and in the second the Appropriations Committee appropriates the money—that is, writes
a bill designating that specific sums be spent on authorized programs. The sums appro-
priated need not and often do not match the amounts authorized because more spending
may be authorized than the appropriators, concerned with the total size of the budget, are
willing to appropriate. For some important programs expenditures take the form of enti-
tlements, which designate specific classes of people who are entitled to a legally defined
benefit. Social Security and Medicare payments and military pensions are examples.
Congress must spend whatever it takes to cover those who are eligible for entitlements—
unless it changes the eligibility standards or the amounts to which the eligible are entitled.

After 1921 the money committees took on the institutional task of protecting con-
gressional majorities from the collective damage that the pursuit of individual electoral
goals threatened to impose. In the House the powerful Appropriations Committee
used its authority to keep members’ desires for locally popular projects (such as dams,

273Chapter 6: Congress

highways, and harbor improvements) and programs (such as housing, urban renewal,
and police equipment) from pushing up taxes or deficits to politically intolerable lev-
els. Tax legislation emerging from Ways and Means was routinely deemed ineligible for
amendment to prevent a scramble for revenue-draining tax breaks for local firms or
well-connected interests.

Budget Reform
By the early 1970s the ability of the money committees to enforce collective self-control
had been seriously eroded. The committee reforms weakened committee leaders, and a
move toward congressional “openness”—doing more business in public—made it harder
for individual members to resist the temptation to promote locally popular projects of
doubtful value. At about the same time, President Richard Nixon used his authority to
impound—refuse to spend—some of the funds authorized and appropriated by Congress
to subvert the spending priorities of its Democratic majorities. Nixon even impounded
appropriations passed over his veto. His actions posed fundamental challenges to the
House and Senate as institutions as well as to their Democratic majorities.

Congress responded with the Budget and Impoundment Control Act of 1974. The
act subjected presidential impoundment authority to strict congressional control. More
important, it revamped Congress’s budgetary process with the goal of making impound-
ment unnecessary. Among other things, the act established a Budget Committee in
each chamber to oversee the coordination of taxing and spending policies. It also insti-
tuted procedures and timetables for setting budget targets, supervising the committees’
decisions on revenues and spending, and reconciling the tax and spending bills enacted
by Congress with the targets. The system was designed to compel members to vote on
explicit levels of taxation, expenditures, and deficits, thereby taking direct responsibility
for the fiscal consequences of the many separate decisions made during a session.

Despite Congress’s good intentions, the reformed budget process proved entirely inca-
pable of preventing the huge deficits produced by budget politics during the Reagan and
Bush administrations of the 1980s and early 1990s. Orderly budgeting fell victim to the
sharp partisan conflict between the Republican presidents and congressional Democrats
over budget priorities. Presidents Ronald Reagan and George H. W. Bush sought to keep
taxes low, congressional Democrats to protect popular domestic spending programs.
Because both low taxes and spending for popular programs proved politically irresistible,
the budget was left unbalanced. No amount of reform, then, could have prevented the
large budget deficits of the 1980s and early 1990s because nothing can force Congress to
follow the rules it makes for itself. Procedures are chosen to produce desired outcomes;
when the rules stand in the way of desired outcomes, members can always find ways
around them.36

Attempts to reduce the deficit by procedural devices failed repeatedly. Congress and
the president chipped away at the deficit with unpopular combinations of tax increases
and spending cuts in 1990 (in a deal between Republican president George H. W. Bush

274 Part II: The Institutions of Government

and a Democratic Congress) and 1993 (enacted by a unified Democratic government led
by Bill Clinton). Still the budget did not come into balance, requiring yet another round
of budget confrontations and negotiations, stretching from 1995 to 1997—and this time
between a Republican Congress and a Democratic president.

The agreement became possible when the booming economy produced a bonanza of
tax revenues, making it much easier to accommodate the desires of both sides. By 1998
the economy had produced so much in new tax revenues that the budget was in sur-
plus, and budget politics turned, temporarily, to the happier task of choosing among tax
cuts, additional spending for government programs, or paying down the national debt.
But a slowing economy put the squeeze on resources in 2001, and revenues were further
reduced by major tax cuts enacted at the behest of the George W. Bush administration.
As spending rose with the cost of homeland security and the wars in Afghanistan and
Iraq, deficits returned. The severe recession that began in late 2007 and lasted for the next
eighteen months, combined with the Obama administration’s package of tax cuts and
spending programs intended to revive economic growth, produced huge budget short-
falls and made deep spending cuts the primary objective of congressional Republicans
when they took control of the House in 2011. Democrats, meanwhile, wanted new tax

Sesame Street’s Elmo and others appear before the House Appropriations Committee on Labor, Health and
Human Services, and Education to ask for federal funding to help ensure every child has access to quality
music instruction. The Muppet’s appearance provided a livelier spectacle—and got more media attention—
than the more typical parade of bureaucrats requesting funding for programs.
Tom Williams/Roll Call/Getty Images

275Chapter 6: Congress

revenues to balance the cuts, leading to another major showdown in 2012 in which the
formal budget process was again largely ignored. Assuming full control of the federal
government in 2017, Republicans forgot their aversion to red ink and enacted large cor-
porate and individual tax cuts that reduced revenues and sent the deficit steeply upward.
Offsetting spending cuts were left for the future. The COVID-19 pandemic brought
more tax cuts and spending increases that further increased the deficit (covered in
Chapter 15), which reached more then $3 trillion in 2020.

Inevitably, partisan politics dominates the budgeting process, and the formal budget
rules guide the action only insofar as they do not prevent congressional majorities from
doing what they want. The rules are also used strategically. For example, the reconcilia-
tion bill that finalizes congressional budget action cannot be filibustered, needing only
a simple majority to pass the Senate. Senate leaders thus use reconciliation legislation to
push through bills strongly opposed by the minority, as with the enactment of health care
reform in 2010 and the tax cuts adopted in 2017. The rules forbid “extraneous” provisions,
so this stratagem works only when legislation can be made to fit budgetary categories.

Congressional Staff and Support Groups
In addition to relying heavily on its committee system, Congress has sought to cope with
its expanding workload by adding staff (shown in Figure 6.8) and specialized research
agencies. Staff doubled between the mid-1950s and the late 1970s (with most of the growth
in personal staff); the numbers then remained stable until 1995, when House Republicans
reduced House committee staffs by 30 percent. Personal staff assistants manage members’
offices in Washington and back in the state or district. They also draft bills, suggest policy,
prepare position papers, write press releases, handle casework for constituents, deal with
lobbyists, and negotiate with other staff on their boss’s behalf. Almost any political or leg-
islative chore short of casting formal votes in committee or on the floor can be delegated to
staff assistants. Committee staffs are deeply involved in all legislative activities. They orga-
nize hearings and investigations; research policy options; attend to legislative details; and
negotiate with legislators, lobbyists, and executive branch officials on behalf of the party
faction or the committee that employs them. The sharp decline in House committee staff
visible in Figure 6.8 has by some informed accounts made the institution less competent
and weaker relative to the executive branch and lobbying industry.37

Members receive additional help in gathering and processing information from sev-
eral specialized congressional agencies. The Government Accountability Office (GAO)
audits and investigates federal programs and expenditures, probing for waste, fraud,
and inefficiency. The GAO can also take on much more controversial issues that call
for clear factual analysis; in January 2020, on the eve of the Senate impeachment trial of
President Trump, the GAO released a report concluding that the White House’s Office
of Management and Budget had violated the law by withholding $400 million in aid to
Ukraine for a policy priority. “Faithful execution of the law does not permit the presi-
dent to substitute his own policy priorities for those that Congress has enacted into law,”

276 Part II: The Institutions of Government

the GAO wrote.38 While most GAO reports are not issued under the white-hot glare of
an impeachment process, all are important for providing members with in-depth back-
ground on emerging policy areas and a factual record, often based in statistical analysis of
data gathered by the GAO’s three thousand employees, to guide congressional decisions.

Two other vital staff organizations support the work of Congress. The Congressional
Research Service (CRS) gives Congress access to a highly skilled team of research-
ers, including many who are leading experts in the history and rules of the legislative
branch itself. The Congressional Budget Office (CBO), created as part of the 1974 budget
reforms, provides Congress with the economic expertise it needs to make informed fiscal
decisions and to hold its own in conflicts with the president’s Office of Management and
Budget (covered in Chapter 7). Among its tasks are economic forecasting and policy anal-
ysis; its estimates of the number of people who would lose their health insurance were, for
example, central to the debates about options for repealing and replacing the Affordable
Care Act early in the Trump presidency. Although the CBO was mainly designed to serve
the collective institutional needs of Congress, it also serves members individually; it will,
on request, provide analyses to let members know how various budget alternatives would
affect their home states and districts.

� FIGURE 6.8 Expanding Congressional Staff


























r o

f E



House committee staff Senate committee staff
House personal staff Senate personal staff

Source: Vital Statistics on Congress (Washington, DC: Brookings), Tables 5-1 and 5-5, at

277Chapter 6: Congress

By using the expert advisers within committee staff and congressional support agen-
cies, members of Congress do not have to take the word of experts from the executive
branch or interest groups, who cannot always be trusted to impart unbiased information.
Although officially bipartisan, the support agencies are the most valuable to the majority
party in Congress when the other party controls the executive branch. Indeed, it was no
accident that a Democratic Congress created the CBO and initiated a major expansion of
the CRS during the Nixon administration or that Republicans replaced the CBO director
when they took full control of Congress in 2015.

Making Laws
Congress’s rules and structures—the parties and committee systems—are designed to
enable majorities to make laws. At every stage of the many routine hurdles a bill must
clear to become law, individual and collective (usually partisan) political interests shape
the action (depicted in Figure 6.9). The lawmaking process presents opponents of a bill
with many opportunities to sidetrack or kill the legislation. It is considerably easier, then,
for members to stop bills than to pass them. Although Congress quickly bypasses regular
legislative procedures in emergencies,* and party leaders now regularly circumvent nor-
mal procedures when trying to enact important and controversial bills, an examination of
these procedures completes the picture of how ordinary legislative politics—referred to as
“regular order”—is supposed to work.39

Introducing Legislation
Only members may submit legislation to the House or Senate. Many proposals origi-
nate outside Congress—from the executive branch, interest groups, and constituents—
but they must have a congressional sponsor to enter the legislative process. The process
itself is largely routine and routinely political. Some bills carry (informally) their authors’
names; for example, the America Invents Act, a patent reform bill enacted in 2011, is
better known as the Leahy-Smith Act after its principal sponsors Senator Patrick Leahy,
D-Vt., and Representative Lamar Smith, R-Tex. Even whole programs may be named
after their authors. For example, the government helps college students finance their edu-
cations through Pell Grants, named after Democrat Claiborne Pell of Rhode Island, who
championed the program when he was in the Senate. Personal credit for what is, after all,
a collective act of Congress (one vote is never sufficient and rarely necessary to accom-
plish anything) is a valuable commodity. Proponents of bills try to line up cosponsors

*For example, within three days of the attacks of September 11, 2001, Congress passed a joint resolution (PL
107-40) authorizing the president “to use all necessary and appropriate force against the nations, organizations,
or people that he determines planned, authorized, committed, or aided the terrorist attacks.” Congress also
passed a major antiterrorism bill (PL 107-56) on October 25, a little more than a month after President Bush
had requested it.

278 Part II: The Institutions of Government

both to build support (by sharing credit) and to dis-
play it (increasing the chances for legislative action).
Most important bills are introduced in the House and
Senate at the same time so the chambers can work on
them simultaneously.

The parties and the president (with the cooper-
ation of congressional friends) also use legislative
proposals to stake out political positions and to make
political statements. Presidents freely submit pro-
posals they know are “dead on arrival” to establish a
record that their party could run on in the future.
Members of Congress regularly do the same.

Assignment to Committee
After a bill is introduced, it is assigned a number
(preceded by H.R. in the House and S. in the Senate)
and referred to a committee. Even the number
assigned can make a political point. In 2019, Speaker
Nancy Pelosi assigned H.R. 1 to a package of reforms
aimed at reducing the influence of money in politics
and strengthening ethics rules and voting laws to
underline her new Democratic majority’s commit-
ment to government reform. Most bills are routinely
assigned to the appropriate committee; complex bills
are often referred to several committees, and espe-
cially difficult bills have sometimes been handled
by temporary ad hoc committees appointed for that
single purpose. The Speaker makes the nonroutine
decisions in the House, manipulating the committee
process to ensure more friendly or expeditious treat-
ment of legislation important to the majority party. In
the Senate, party leaders negotiate agreements to set-
tle disputed referrals.

Once a bill has been referred to a committee, the
most common thing that happens next is nothing.
Most bills die of neglect—and are meant to—in com-
mittee. Many more bills are introduced than mem-
bers have time to deal with—more than ten thousand
in a typical two-year Congress. Some bills are intro-

duced “by request,” meaning the introducer was doing someone—a constituent or cam-
paign contributor—a favor by offering the bill but has no further interest in its fate. Bills

� FIGURE 6.9 How a Bill Becomes a Law


or veto



reported out

Introduced in
House and
referred to


to reconcile





reported out

Introduced in
Senate and
referred to


Bill is

279Chapter 6: Congress

introduced by the minority party to
score political points or embarrass
the majority are deliberately buried.
Like party leaders, committee chairs
and their allies strive to avoid situa-
tions in which their party colleagues
might have to cast potentially
embarrassing votes. If the commit-
tee decides on further action, the
bill may be taken up directly by the
full committee, but more commonly
it is referred to the appropriate

Once the subcommittee decides
to act, it (or the full commit-
tee) may hold hearings, inviting interested people—from executive agencies, interest
groups, academia, or almost anywhere—to testify in person or in writing about the
issue at stake and proposals to deal with it. In a typical recent two-year Congress, the
Senate held about twelve hundred hearings; the House, about twenty-three hundred.
Hearings may be orchestrated to make a record for (or against) a particular proposal,
to evaluate how a program is working, or simply to generate publicity—for commit-
tee members as well as issues. Committees can investigate almost anything, including
the White House or Congress itself. The White House is especially likely to be tar-
geted when controlled by a congressional majority’s rival party, as was the case in the
116th Congress, when Democrats regained control of the House and promptly began
investigating Donald Trump’s tax returns, Russian meddling in the U.S. election, the
Department of Homeland Security’s separation of immigrant families, and financial
transactions between foreign governments and Trump’s businesses. The rival party’s
prospective presidential nominee may get special attention as well. For instance, in
March 2015 Hillary Clinton was grilled for eleven hours by the House Select Committee
on Benghazi about her response to a 2012 terrorist attack on the American diplomatic
mission in that Libyan city. Senate committees also hold hearings to evaluate judicial,
diplomatic, and senior administrative appointments; these can be very contentious, as
in the hearings on Brett Kavanaugh’s appointment to the Supreme Court in 2018 during
which he was accused of and adamantly denied youthful sexual misdeeds.

Hearings also provide a formal occasion for Congress to monitor the administration
of the laws and programs it enacts. The heaviest duty falls on the Appropriations sub-
committees in the House, for government agencies have to justify their budget requests
to these panels every year. Congress often is criticized for shirking its duty to oversee

Rubik’s Congress-COLOR by R.J. Matson, Roll Call

280 Part II: The Institutions of Government

the administration of laws. After all, if carried out, comprehensive oversight would be a
tedious, time-consuming, politically unrewarding chore. Instead, members of Congress
set up administrative procedures that give affected interests an opportunity to protest
damaging bureaucratic policies and decisions. In this way, members can confine their
oversight to those areas of administration where the political stakes are demonstrably
high. Members operate more like firefighters than police, waiting for fire alarms to go off
before taking action rather than patrolling the streets looking for crime.40 By relying on
people affected by administrative decisions to alert it to problems, Congress, in effect, puts
a big bumper sticker on bureaucrats that says, “How am I driving? Call 1-800-Congress”
(covered in Chapter 8).

Reporting a Bill
If the subcommittee decides to act on a bill (and often it does not), it marks it up—that is,
edits it line by line—and reports it to the full committee. The full committee then accepts,
rejects, or amends the bill. With the exception of important and controversial bills, com-
mittees usually defer to subcommittees; otherwise, they lose the benefits of a division
of labor.

Much of the coalition building that produces successful legislation takes place as
subcommittees and committees work out the details of bills. No one wants to waste time
on a bill that has no chance of passing—unless political points could be scored, as with
the numerous votes congressional Republicans took on bills aimed at undoing Obama’s
health care reforms knowing full well that Obama would veto any that passed. If a bill can-
not attract solid support from at least the majority-party committee members (and per-
haps minority-party members as well), its chances on the House or Senate floor are slim
indeed. But if amendments, compromises, and deals can build a strong committee coali-
tion for a bill, its chances on the floor are much better. The committee system, then, also
divides the labor of coalition building.

The written report that accompanies every bill reported out of committee is the most
important source of information on legislation for members of Congress not on the com-
mittee and for other people in government, including the agencies and courts that have to
implement and interpret the law once it is passed. These reports summarize the bill’s pur-
poses, major provisions, and changes from existing law. They also summarize the argu-
ments for and against the bill.

Scheduling Debate
When a committee agrees to report a bill to the floor, the bill is put on the House or Senate
calendar—a list of bills scheduled for action. Each chamber has different calendars for dif-
ferent types of bills. In the House, noncontroversial bills are put on the Consent Calendar
(public bills) or Private Calendar (bills concerning individuals) to be passed without

281Chapter 6: Congress

debate. Such bills also may be dealt with expeditiously under a suspension of the rules,
which waives almost all of the formalities to allow swift action. Most legislation passed by
the House follows one of these routes.

Controversial or important bills are placed on the Union Calendar (money bills) or
House Calendar (other public bills). The committee reporting such bills must ask the
Rules Committee for a rule, a resolution that specifies when and how long a bill will be
debated and under what procedures. The rule may permit amendments—changes in
wording—from the floor (open rule), only certain amendments (restricted rule), or no
amendments (closed rule). A rule may also specify the order in which amendments are
considered, thereby stacking the deck to favor particular outcomes. Majority-party lead-
ers use restricted or closed rules to keep unwanted amendments off the agenda, both to
protect their party’s members from casting embarrassing votes and to keep legislative
packages from unraveling. Closed rules help to solve the majority’s prisoner’s dilemmas;
many proposals that would not be enacted piece by piece because different members
would defect on different sections can pass if they are voted on as packages. As partisan
competition became more intense during the 1980s, Democratic House leaders increas-
ingly used restricted or closed rules to maintain control of the floor agenda. The portion of
rules that were either restricted or closed rose from 15 percent in the session held in 1977–
1978 to 46 percent of rules in the session held ten years later. Republicans objected stren-
uously but, after taking over in 1995, regularly resorted to restrictive rules themselves; in
their first session in control of the House, Republican leaders issued 43 percent of either
restrictive or closed rules. Tight majority-party control of the legislative process has since
become the norm, and open rules have been rare in recent Congresses; 85 percent of rules
were restrictive or closed in the session held in 2007–2008, and not a single open rule was
allowed in the House during the congressional session held in 2017–2018.41

If the Rules Committee holds hearings on a rule, interested members may express
their views on the legislation. After hearings, a bill may be granted a rule, or it may be
denied a rule entirely, at least until its sponsors have revised it to the Rules Committee’s
satisfaction. Once the Rules Committee grants a rule, it must be adopted by a majority
vote on the floor. When floor action on a bill is constrained by its rule, a House major-
ity has, in fact, consciously chosen to constrain itself. Sometimes the House kills a bill
by voting against the rule rather than against the bill itself. In 1994, for example, the
House rejected a rule for a bill to elevate the Environmental Protection Agency (EPA) to
cabinet status because the bill did not require the new department to consider the eco-
nomic costs and benefits of new environmental regulations. The House’s action killed
the legislation.

In 2001, Republican House leaders tried to kill a campaign finance reform bill they
strongly opposed by proposing a rule so unacceptable to the bill’s proponents that they
joined in voting the rule down. When the Republican leaders refused to act further on
the bill, its supporters eventually got it out of Rules through a discharge petition, which
brings a bill directly to the floor without committee approval when signed by a majority

282 Part II: The Institutions of Government

of House members (218). This discharge petition was a rare success; since 1967, only
thirteen such petitions have received the required 218 signatures.*

The Senate has no equivalent of the House Rules Committee or, indeed, any rules lim-
iting debate or amendments. The majority leader can exercise some agenda control by
using a device called “filling the amendment tree,” preempting all opportunities for offer-
ing amendments to avoid votes party members would prefer not to cast. Doing so, how-
ever, annoys the minority party, which has many other tools for obstructing the majority.
Thus, the leaders of both parties routinely negotiate unanimous consent agreements to
arrange for the orderly consideration of legislation. Unanimous consent agreements are
similar to rules from the House Rules Committee in that they limit time for debate, deter-
mine which amendments are allowable, and provide for waivers of standard Senate proce-
dures. The difference is that the minority party always has a say in them.

Without a unanimous consent agreement, there is no limit on how long senators
can talk or on how many amendments they can offer. Individuals or small groups can
even filibuster—hold the floor making endless speeches so that no action can be taken on
the bill or anything else—to try to kill bills that the majority would otherwise enact. And
breaking a filibuster is difficult. Under Senate rules an extraordinary three-fifths major-
ity of the Senate membership (sixty votes) is required to invoke cloture, which allows a
maximum of thirty additional hours of debate on a bill before a vote must be taken.

Conservative southern senators used filibusters most notoriously in their rear-guard
action against civil rights laws a generation ago, but senators of all ideological stripes now
use the tactic. In fact, filibustering has become much more common in recent years and
was especially rife after Republicans lost control of the Senate in 2007. During the 111th
Congress (2009–2010), Democratic majority leader Harry Reid, facing a Republican
minority bent on obstructing Barack Obama’s legislative agenda, filed a record 139 cloture
motions, of which ninety-one came to a vote and sixty-three received at least sixty votes,
thus ending debate and opening the way to a final vote. All of these numbers were much
higher for the 113th Congress, but they include a large number of clotures on presidential
nominations to the federal courts and the executive branch invoked by simple majorities
under new rules pushed through at Reid’s behest in late 2013 (refer to Logic of Politics box,
“The Origin and Evolution of the Senate Filibuster”). The old rules remain in place for leg-
islation, where even the threat of a filibuster can stop action because Senate leaders dislike
wasting time on bills not likely to pass. With filibustering now so routine—more than half
of the major legislation considered by the Senate in recent Congresses has been subject to
filibusters and other delaying tactics42—the reality is that the support of sixty senators is
needed to pass any controversial piece of legislation except the budget resolution, which is
protected from filibusters by a special rule. Whether the filibuster can survive the current

*Ultimate success is even rarer for discharged bills. Since 1910, when the procedure was first instituted, only
four bills brought to the House floor via discharge have become law: in 1931; 1960; 2002, when Congress passed
the Shays-Meehan campaign finance reforms; and 2015, when Congress passed a bill reauthorizing the Import-
Export Bank.

283Chapter 6: Congress

era of unrestrained partisan war-
fare is an open question, for the ploy
used by Reid to amend the cloture
rules is available to any sufficiently
frustrated Senate majority.

In addition to permitting fil-
ibusters on legislation, the rules
allow individual members to tie the
Senate up in knots by refusing to
concur with unanimous consent
agreements aimed at facilitating
the chamber’s work. Senators, then,
must depend on mutual restraint
and bipartisan cooperation to get
their work done. When cooperation
breaks down, the Senate is immobi-
lized. Senators thus buy lower con-
formity costs at the price of higher
transaction costs.

Debate and Amendment
In the House, the time for debate
is divided equally between the proponents and opponents of a bill. Each side’s time is con-
trolled by a floor manager, typically the committee or subcommittee chair and the oppos-
ing ranking member. If amendments to a bill are allowed under the rule, they must be
germane (pertinent) to the purpose of the bill; extraneous proposals, known as riders, are
not allowed. Debate on amendments usually is restricted to five minutes for each side. The
House often debates bills as a Committee of the Whole because, acting in the guise of a com-
mittee, the House is less encumbered by formal procedures. For example, for the Committee
of the Whole, a quorum—the number of members who must be present for the House to act
officially—is 100 rather than the usual majority of 218, and a member chosen by the Speaker
wields the gavel. The House must revert back to itself, however, to vote on legislation.

Floor debates change few minds because, jaded by experience, politicians are rarely
swayed by one another’s eloquence. Debates are for public consumption: to make argu-
ments members will use to justify their votes to constituents and others; to shape public
perceptions through the media; to guide administrators and courts when they apply and
interpret the legislation; to stake out partisan positions; to show off. More important, for-
mal floor debates serve to legitimize policy. Whatever deals and compromises went into
building a legislative coalition, whatever the real purposes of its supporters, they have to
make a case that the proposed action will serve the public interest. The opposition has
equal time to argue, on the same grounds, against the action.

Vermont senator Bernie Sanders gained national prominence—and set the stage
for his strong presidential runs—when he conducted a one-person filibuster in
December 2010, railing against provisions in a budget deal reached between
Barack Obama and Senate Republicans that included estate tax cuts for the
wealthy. Sanders spoke for eight and a half hours, winning progressive praise but
failing to shift the legislative outcome. The deal passed the Senate 81–19 soon
after his speech ended, a reminder that filibusters can succeed when the minority
party unites behind them but not when they are a one-person show.
Senate camera/

284 Part II: The Institutions of Government


The Origin and Evolution
of the Senate Filibuster
Nothing is more emblematic of the Senate’s
special character than the filibuster—the ability
of a minority of senators to block action on
legislation or presidential appointments by
extending debate, holding the floor until the
majority gives up or grows to a supermajority
that wields the sixty votes now necessary to
adopt a cloture motion, which terminates
debate and allows the Senate to proceed to a
vote on the matter. Ironically, this hallowed
practice originated more by accident than by
design. Between 1789 and 1806, the Senate’s
rules included a motion “to move the previous
question,” which if adopted by a simple majority
ended debate and compelled a final vote on the
matter at hand. When the rules were revised that
year, the previous question motion was dropped
because it was rarely used and did not seem
necessary for the Senate to do its business. Three
decades then passed before a Senate minority
bent on obstruction found it could exploit the
absence of any formal procedure for ending
debate by conducting a filibuster.

From 1806 until 1917, a single senator could
block action by refusing to end debate. That year,
under strong pressure from President Woodrow
Wilson and a public appalled that twelve antiwar
senators had successfully filibustered a bill to
arm U.S. merchant ships threatened by German
submarines, the Senate adopted Rule 22, which
allowed a two-thirds majority to invoke cloture.
Cloture was made a bit easier in 1975 when the
required majority was reduced to three-fifths of
the Senate’s membership (sixty).

Before the 1970s, filibusters were rare, but their
use has since increased dramatically, producing
a “sixty-vote Senate” for bills other than budget
resolutions, which may not be filibustered. Why

this increase? One reason is that majorities no
longer forced filibusterers to exhaust themselves
speaking round the clock in order to hold the
floor. Growing demands on senators’ time—for
travel back home and raising campaign money as
well as for managing their formidable legislative
workloads—made them reluctant to adopt such
a time-consuming strategy of attrition. Instead,
senators in opposition to the filibusters now
fight them with cloture motions, which minimize
the filibusters’ expense because they no longer
shut down other Senate business. This low cost
makes the filibuster an attractive option for
individual senators bent on extracting legislative
concessions as well as killing legislation. The
filibuster has also become a standard weapon
of partisan warfare in an increasingly polarized
Senate, epitomized by its use in the 111th
Congress (2009–2010) as a key component of
the minority Republicans’ strategy of root-and-
branch obstruction of Barack Obama’s legislative

By the 113th Congress (2013–2014), Senate
Democrats had become so frustrated with
Republicans’ blocking of votes on Obama’s
nominations to executive and judicial offices that
they changed the rules (using a parliamentary
maneuver that allowed the rules to be amended
by a simple majority vote of fifty-one) so that
cloture on presidential nominees (except for
the Supreme Court) could be accomplished by
a simple majority vote. Republicans expressed
outrage; Minority Leader Mitch McConnell
suggested that were his party to hold a majority
in the next Congress, it just might subject all
Senate action to a simple majority vote. It has yet
to go that far, but in 2017 the Republican majority
eliminated the filibuster for Supreme Court
nominees as well as other nominees, paving the

285Chapter 6: Congress

way for the ascension of conservative justices
Neil Gorsuch and Brett Kavanaugh along with
the broader stacking of the federal courts with
conservative Republicans. At various times, both
Republican and Democratic Senate majorities
have contemplated eliminating the filibuster
entirely, a move dubbed the “nuclear option”
because it would escalate partisan conflict to
total war. But the filibuster has survived this
long for reasons other than pure custom. First,
the next election could turn a majority into a
minority, and while in the majority, senators have

been willing to tolerate obstruction in order to
retain the right to obstruct. Second, minorities
have usually avoided pushing obstruction to the
point where the majority becomes sufficiently
angry and frustrated to risk the fallout from
using the nuclear option. Third, that fallout
would be heavy; an infuriated Senate minority
has a variety of options beyond the filibuster
for frustrating and harassing the majority. Still,
extreme partisan polarization in Washington
currently leaves the filibuster in considerable

� FIGURE 6.10 Cloture Votes in the Senate, 1947–2020

Cloture Motions Filed Votes on Cloture Cloture Invoked






































































































Sources: U.S. Senate, “Senate Action on Cloture Motions,”
clotureCounts.htm. Gregory Koger, Filibustering: A Political History of Obstruction in the House and Senate
(Chicago: University of Chicago Press, 2011); Sarah A. Binder and Steven S. Smith, Politics or Principal?
Filibustering in the United States Senate (Washington, DC: Brookings, 1997); Brian Friel and Niels Lesniewski,
“Senate Limits ‘Holds,’ Keeps Filibuster,” CQ Weekly, January 31, 2011, 260; “McConnell in 2013: No
Reason for GOP Senate to Reverse ‘Nuclear Option,’” Roll Call, December 19, 2014, at

286 Part II: The Institutions of Government

Floor action does more to shape legislation in the Senate than in the House. Because
unanimous consent is required to limit Senate debate (except when cloture is used to end
a filibuster), members are free to spend as much time as they like debating a bill. Unlike
in the House, few conflicts are resolved in Senate committees or subcommittees; sena-
tors do much more legislating on the floor, offering amendments or complete alternatives
to the bill reported by the committee. Senate amendments need not even be germane;
important bills are sometimes passed as amendments—or riders—to completely unre-
lated bills. For example, in 1994 when the Senate passed a bill elevating the EPA to cabi-
net status—the same bill the House killed by voting down the rule—it also inserted into
the text an amendment that would have reauthorized the 1974 Safe Drinking Water Act.
Unrestrained floor debate has long been the fullest expression of the Senate’s individualis-
tic, participatory ethos. But this ethos is now threatened by intensified party conflict and
the arrival of many veterans of the highly partisan, majority-dominated House.43

The Vote
Members of Congress are ever alert to the political implications of votes on impor-
tant bills. The fate of legislation often is decided by a series of votes rather than a single
vote. For example, opponents of a measure may propose “killer” amendments, which, if
passed, would make the bill unacceptable to an otherwise supportive majority. In addi-
tion, opponents may move to recommit the bill—that is, to send it back to committee
for modification or burial—before the final vote. And on occasion, members may try
to straddle an issue by voting for killer amendments or to recommit but then voting for
the bill on final passage when these moves fail. Sophisticated observers have little trou-
ble picking out the decisive vote and discerning a member’s true position, but inattentive
constituents may be fooled.

How do members of Congress decide how to vote? Prior to the current period of
heightened partisanship in both chambers, members reported that, along with their
own views, the opinions of constituents and the advice of knowledgeable and trusted
colleagues had the strongest influence on their decisions; other sources—party leaders,
presidents, interest groups, the press—were said to be much less influential. Constituents
and colleagues are still important, but the pressure for party conformity has made party
leaders considerably more influential than they were a generation ago. Often members
are aware of what their constituents want without anyone having to tell them. At other
times they rely on letters, phone calls, faxes, e-mails, text messages, editorials, and polls
to get a sense of what people think. Even on issues on which constituency opinion is
unformed, members try to anticipate how constituents would react if they were to think
about the issue. The idea is to cast an explainable vote, one that can be defended publicly if
brought up by a challenger in some future campaign. This is not always easy, for a vote that
is explainable to the strong partisans who vote in primary elections may not be explain-
able to the broader, more moderate voters needed to win the general election, and vice
versa. Not every vote has to please the people who hire and fire members of Congress, but

287Chapter 6: Congress

too many “bad” votes can expose a member to the charge of being out of touch with the
folks back home.44

Most constituents know and care little about most of the issues on which members
vote. The minority of the public that does pay attention varies from issue to issue. The rel-
evant constituency opinions are those held by people who care, pay attention, and are not
securely in the other party’s camp, for their support will be affected by how the member
handles the issue. In other words, the politically relevant interests on most issues are spe-
cial interests. For that reason, in Congress intense minorities often prevail over apathetic
majorities. One example: opponents of gun control, led by the National Rifle Association,
have blocked gun control legislation many times over the years despite widespread public
support for tighter regulation of firearms. Even the recent rash of deadly school shootings
has not changed this political equation.

Members rely on trusted colleagues to guide voting decisions because legislators can-
not possibly inform themselves adequately about all the matters that require a vote. They
depend instead on the expertise of others, most often members of committees (usually
from their own party) with jurisdiction over the bills outside their own specialties. More
generally, members have reason to listen to anyone who can supply them with essential
information: political information about how constituents and other supporters will view
their actions and technical information about what the legislation will do. They also have
reason to weigh the views of anyone who can help or hinder them in winning reelection,
advancing their careers in Washington, and having an impact on policy. Constituents’
views count the most because they have the most direct control over members’ careers,
but the views of party leaders (as agents of their party colleagues), interest groups, and
campaign contributors also shape decisions, especially on issues of little concern to

How influential is the president when the votes are finally cast? Occasionally presi-
dents have been able to win against the odds by persuading wavering members of their
party to stick with the team or by cutting special deals with pivotal members. A classic
example occurred in 1993, when President Clinton’s successful appeals to party loy-
alty were crucial to his razor-thin budget victories (218–216 in the House, 51–50 in the
Senate, where Vice President Al Gore’s vote broke a tie); no Republican in either chamber
would support the budget because it included tax increases. Essential, too, were the bar-
gains made to modify the bill to satisfy reluctant Democrats.45 On most votes, however,
the administration’s wishes are by no means paramount. Thirty-four House Democrats
voted against Obama’s signature health care reform bill in 2010, for example; and 20
House Republicans voted against the repeal bill backed by Trump in 2017, as did the three
Republican senators whose defection ended the effort that year.

House and Senate party leaders also have limited influence at this stage of the pro-
cess, at least if they are pushing for votes that might rile important constituents. Leaders
exercise their greatest influence at earlier stages though control of the agenda and deal-
making process, framing the ultimate choices that members face on the floor. But in doing
so, their main task is to construct legislative packages that party members are comfortable

288 Part II: The Institutions of Government

supporting. If they are successful, no
persuasion is necessary. If they fail, few
members are likely to put party loyalty
ahead of constituents’ views except
under the most intense pressure and
on the party’s most important bills.
High levels of party loyalty on roll-call
votes (refer to Figure 6.6) prevail in
part because majority-party leaders
keep party-splitting bills from reaching
the floor.

In the House, unrecorded voice
votes may be cast, but at the request of
at least twenty members a recorded
roll-call vote is taken. When voting by
roll call, members insert a small plas-
tic card into one of the more than forty
stations scattered about the House
floor and press a button for “yea,” “nay,”
or “present” (indicating they were on
the floor for the vote but did not take a
side). Senators simply announce their

votes when their names are called from the roll of members rather than record them by
machine. Senators may also take unrecorded voice votes, but as a matter of senatorial
courtesy a recorded roll-call vote is taken if any senator requests it.

Reconciling Differences
Once passed, a bill is sent to the other chamber for consideration (if some version has not
already been passed there). If the second chamber passes the bill unchanged, it is sent to
the White House for the president’s signature or veto. Routine legislation usually follows
this route, but bills often pass the House and Senate in different versions, and the two
bodies have to reconcile the differences before the bill can leave Congress. Sometimes a
bill is shuttled back and forth between chambers, with adjustments made in each round
until the two versions exactly agree. More commonly, one chamber simply drops its own
and accepts the other chamber’s version. If neither is willing to give in, reconciliation may
become the job of a conference committee.

Party leaders in each house appoint a conference delegation that includes members
of both parties, usually from among the standing committee members most actively
involved for and against the legislation. Each chamber votes as a separate unit in confer-
ence, and a bill is not reported out of conference to the House and Senate until it receives

Once of the darkest days in congressional history occurred on January 6,
2021, when a massive group of rioters marched from a rally led by President
Trump to overtake the Capitol building just as Senators and House members
convened to record the 2020 Electoral College vote. Here, a U.S. Capitol Police
officer pepper sprays an entering rioter.
Bloomberg/Kevin Dietsch/UPI via Getty

289Chapter 6: Congress

the approval of majorities of both delegations. Conference committees are supposed to
reconcile differences in the two versions of a bill without adding to or subtracting from
the legislation. In practice, however, they occasionally do both. Conference committees
generally exercise the widest discretion when the two versions are most discrepant. Once
conferees reach agreement on a bill, they report the details to each chamber. A conference
report is privileged—that is, it can be considered on the floor at any time without going
through the usual scheduling process. If both chambers approve the report, the bill is sent
to the president. If differences cannot be reconciled, the bill dies. This outcome is unusual,
however; when a proposal has attracted enough support to make it this far and members
face a choice to take it or leave it, they usually take it.

Once common, the use of conference committees has declined precipitously in recent
years. From 1993 through 2004, an average of forty-two conference committees were
appointed per Congress to reconcile House-Senate differences.46 Since then, the number
has fallen to single digits; only three were appointed during the 113th Congress, nine in
the 114th, and five in the 115th. The conference committee process has become another
victim of the polarized partisan warfare that has concentrated legislative deal-making in
the hands of senior party leaders.

To the President
Upon receiving a bill from Congress, the president has the choice of signing the bill
into law; ignoring the bill, with the result that it becomes law in ten days (not counting
Sundays); or vetoing the bill (covered in Chapter 7 for more information on the veto pro-
cess). If Congress adjourns before the ten days are up, the bill fails because it was subject
to a pocket veto (the president, metaphorically, stuck it in a pocket and forgot about it).
When presidents veto a bill, they usually send a statement to Congress, and therefore to all
Americans, that explains why they took such action.

Congressional override of a presidential veto requires a two-thirds vote in each
chamber. If the override succeeds, the bill becomes law. Success is rare, however, because
presidents usually can muster enough support from members of their own party in at
least one chamber to sustain a veto. When a head count tells presidents that an override
is possible, they hesitate to use the veto because the override would expose their politi-
cal weakness. Of the 499 regular vetoes cast between 1945 and 2018, only fifty-two were
overridden. Presidents also exercised 310 pocket vetoes, none of which could be over-
ridden, over the same period.47 Presidents often prevail without having to resort to a veto
because members of Congress are reluctant to invest time and effort in legislation that
will die on the president’s desk. The exception is when congressional majorities want to
stake out a position on a prominent issue to score political points. The veto, then, is a
major weapon in the presidential arsenal; presidents can threaten to kill any legislative
proposal they find unsatisfactory, usually leaving Congress with no choice but to cut
presidents in on deals.

290 Part II: The Institutions of Government

A Bias against Action
Emerging from this review of the process and politics of ordinary congressional lawmak-
ing is one central point: it is far easier to kill a bill than to pass one. Proponents of legis-
lation have to win a sustained sequence of victories—in subcommittee, in committee, in
Rules (in the House), in conference, on the floors of both chambers (repeatedly), and in
the White House—to succeed. To do this supporters of a bill have to assemble not one but
multiple majority coalitions. Opponents need win only once to keep a bill from going for-
ward. The process imposes high transaction costs, conferring a strong bias in favor of the
status quo.

Unorthodox Lawmaking
The majority party can easily find its legislative agenda frustrated by the minority party
when ordinary legislative procedures are followed. As party divisions in Congress have
intensified and minority obstruction has become more common, majority-party leaders
have improvised unorthodox procedures to enact legislation. In the House, these include
designing complex special rules to structure debate and amendment to minimize the
minority’s influence, bypassing or overriding committees to draft bills directly, rewrit-
ing legislation in conference committee after it has passed the floor, combining separate
bills into huge omnibus packages that leave members the choice of accepting all or get-
ting nothing, and enacting continuing resolutions in lieu of passing formal budgets to
fund the government. In the Senate, the minority party has probably contributed most to
deviations from orthodoxy through the unbridled use of the filibuster, compelling leaders
to negotiate supermajority coalitions of at least sixty votes to act on controversial issues.
Majority Senate leaders have responded with procedural strategies designed to minimize
the damage, such as filling the amendment tree. In dealing with important and controver-
sial legislation, unorthodox procedures have in fact become the congressional norm.48

Unorthodox lawmaking requires a heavy investment of leaders’ resources—time,
energy, and favors—reflecting the high transaction costs incurred in getting Congress
to act collectively on issues that provoke strong disagreement. Only a limited number of
measures can receive such treatment, thus enhancing the status quo bias of legislative
politics. Proposals that fall along the wayside can always be revived and reintroduced
in the next Congress, however. Indeed, it is not at all unusual for many years to elapse
between the initial introduction of a major piece of legislation and its final enactment.
Proposals for national health insurance had been on the congressional agenda inter-
mittently for more than sixty years before the Affordable Care Act (the ACA, known as
Obamacare) passed in 2010. Defeats are rarely final, but neither are most victories; the
game is by no means over when a law is enacted. The real impact of legislation depends
on how it is implemented by administrators and interpreted by the courts (covered in
Chapters 8 and 9). And laws always are subject to revision or repeal by a later Congress;
witness President Trump’s attempts to repeal the ACA in the 115th Congress. That victo-
ries or defeats almost always are partial, and conceivably temporary, contributes a great

291Chapter 6: Congress

deal to making politics—cooperation in the face of disagreement—possible. Politicians
recognize that taking half a loaf now does not mean they cannot go for a larger share in the
future and that losses need not be irreversible.

Evaluating Congress
Americans hold contradictory views about their national legislature. In the abstract, most
people approve of the Constitution’s institutional arrangements. Any proposals for change
advanced by constitutional scholars and reformers are ignored by virtually everyone else.
And Americans usually like their own representatives and senators, who always receive
substantially higher approval ratings from constituents than does their institution. Most
incumbents win reelection even when the public professes to be thoroughly fed up with
national politics and the politicians of one or both parties. But Congress as it operates and
its members as a class are rarely appreciated, and it is unusual for a majority of Americans
to approve of its performance (shown in Figure 6.11).

The public’s typical disdain for Congress reflects the low repute garnered by poli-
ticians as a class. Habitual contempt for politicians arises from the nature of politics itself.
Americans use politics as a vehicle for social decisions even when they share no consensus
about the best course of action. Politics, then, inevitably requires compromises and trades,
the results of which leave no one fully satisfied. The alternative to compromise—stalemate—
is often equally scorned by a public more inclined to view legislative gridlock as a product
of partisan bickering than of intractable conflicts among legitimate values, interests, and
beliefs. In reality, Congress’s difficulty in deciding on a budget, reforming the health care
system, or dealing with an array of social problems (poverty, inequality, education, job loss)
reflects the absence of any public consensus on what should be done about these issues. The
only consensus is that national leaders, when failing to act, have not done their job.

Congress’s poor reputation also arises from the very nature of pluralism. In pluralist
politics, adamant minorities frequently defeat apathetic majorities because the minorities
invest more of their political resources—votes, money, persuasive efforts—in getting their
way. Indeed, the ability of pluralist systems to weigh the intensity of preferences as well as
to count heads is viewed as a major advantage because it means that groups tend to win
when they care most and lose when they care least. But it also means that “special inter-
ests” often win out over general interests, leaving members of Congress perpetually open
to the charge of violating the public trust.49 Congress’s reputation also suffers from recur-
rent if not widespread ethics scandals involving money, sex, and even drugs.

All of these sources of public disdain for members of Congress represent conditions
to be coped with rather than problems that can be solved. Senators and representatives
cannot avoid making political deals, representing conflicted publics, or paying special
attention to intensely held views. And not all of them will resist the many opportunities
for corrupt self-dealing that come with the job. Thus, members of Congress as a class are
never likely to be revered by the public for any length of time.







s R









e P


0 1993 I

III 1994 I
III 1995 I
III 1996 I
III 1997 I
III 1998 I
III 1999 I
III 2000 I
III 2001 I
III 2002 I
III 2003 I
III 2004 I
III 2005 I
III 2006 I
III 2007 I
III 2008 I
III 2009 I
III 2010 I
III 2011 I
III 2012 I

2013 I
2014 I



2015 I
III 2016 I
III 2017 I
III 2018 I


Percent Approving (Quarterly Average)














l D

















s c



y e














293Chapter 6: Congress

Still, approval of Congress does vary in response to how it seems to be doing its job.
The public prefers bipartisan agreement to partisan bickering; cooperation with the pres-
ident over conflict between the branches; and, most of all, successful government policies.
For example, in early 1998, on the heels of the 1997 balanced budget agreement between
Clinton and the Republican Congress and against a background of a booming stock mar-
ket and unemployment and inflation rates down to levels not seen since the 1960s, pub-
lic approval of Congress in the Gallup poll reached 57 percent, up nearly 30 points from
its low in 1992. But when Congress engaged in a highly partisan battle over impeaching
Clinton for perjury and obstruction of justice in his attempt to cover up his sexual dalli-
ance with a White House intern, its level of public approval fell sharply.

Evaluations of Congress became dramatically more positive in the wake of the
al-Qaeda attacks on the United States in September 2001. The approval rating reached
a record high of 84 percent a month after planes hit the World Trade Center and the
Pentagon. With Congress itself under apparent biological attack from anthrax dissemi-
nated through the mail (its source was later found to be domestic and unrelated to the
September 11 attacks) and displaying bipartisan resolve in supporting the Bush admin-
istration’s initial proposals to combat terrorism, Congress-bashing went suddenly out of
fashion. The distinction in the public mind between Congress as a revered constitutional
invention and as a bunch of politicians doing the messy and often unsightly work of pol-
itics dissolved for a brief time, and Congress was included in the surge of patriotic affec-
tion for the symbols of American democracy the attacks had inspired (covered in Chapter
10). Soon, however, the public’s view of Congress resumed its normal shape; within a year
approval of Congress had fallen below 50 percent, and by the 2006 midterm election it was
down to 25 percent. During the past decade, unrestrained partisan conflict has been far
more common than bipartisan cooperation, so a large majority of the public has found
fault with Congress most of the time. Since 2011, popular approval of its performance has
rarely exceeded 20 percent.

Despite all its faults, perceived and real, the U.S. Congress remains the most power-
ful and independent legislature in the world. It has retained its power and independence
for both constitutional and institutional reasons. The Constitution not only granted the
House and Senate extensive legislative powers but also provided the basis for electoral
independence from the executive. Congress’s formal legislative powers and electoral
independence would have been of little avail, however, had members not created effec-
tive institutional devices for acquiring information, coordinating action, managing con-
flict, and discouraging free riding. By developing the party and committee systems and
securing the assistance of numerous staff and specialized research agencies, members
of Congress have given themselves the organizational means to carry out, and thus to
retain, their constitutional mandate. But their task is rarely easy nor the way smooth, for
the Madisonian system that Congress epitomizes erects formidable barriers to collective
action, and the range and complexity of contemporary political conflicts continually test
Congress’s fundamental ability to do politics successfully.

294 Part II: The Institutions of Government


casework 247
closed rule 281
cloture 282
conditional party

government 260
conference committees 269
discharge petition 281
earmarks 249
entitlements 272
filibuster 282
gerrymandering 238
joint committees 269

majority leader 260
majority whip 260
multiple referrals 272
open rule 281
pocket veto 289
“pork-barrel” legislation 249
president pro tempore 265

representation 236
quorum 283
restricted rule 281
riders 283

roll-call vote 288
rules 256
select committees 268
seniority rule 256
Speaker of the House 257
special committees 268
standing committees 267
status quo bias 290
term limits 271
ticket-splitting 243
unanimous consent

agreements 265


Arnold, R. Douglas. The Logic of Congressional
Action. New Haven, CT: Yale University Press,
1990. Explains how congressional leaders can
manipulate the rules to overcome electorally
induced free riding when they want to enact poli-
cies that impose short-term or concentrated costs
to achieve longer-term or diffuse benefits.

Cox, Gary W., and Mathew D. McCubbins.
Legislative Leviathan: Party Government in the
House. Berkeley: University of California Press,
1993. Lucid explanation of the logic that undergirds
the House party organizations; makes a strong case
that congressional parties are more powerful than
most observers have assumed.

Davidson, Roger H., Walter J. Oleszek, Frances E.
Lee, and Eric Schickler. Congress and Its Members.
15th ed. Thousand Oaks, CA: CQ Press, 2015.
Thorough, authoritative text that is especially good
at explaining rules and procedures.

Dodd, Lawrence D., and Bruce I. Oppenheimer.
Congress Reconsidered. 11th ed. Thousand Oaks,

CA: CQ Press, 2016. Offers historical and theo-
retical perspectives on congressional change and
an up-to-date discussion of the contemporary

Fenno, Richard F., Jr. Home Style: House Members
in Their Districts. Boston: Little, Brown, 1978.
Fenno’s close personal observation of House mem-
bers’ interactions with their constituents produces
a wealth of insights about how representation actu-
ally works.

Jacobson, Gary C., and Jamie L. Carson. The Politics
of Congressional Elections. 9th ed. New York:
Rowman & Littlefield, 2016. A comprehensive look
at congressional elections.

Kaiser, Robert G. An Act of Congress: How America’s
Essential Institution Works, and How It Doesn’t.
New York: Knopf, 2013. A fascinating and up-to-
date case study of how a bill (the Dodd–Frank Wall
Street Reform and Consumer Protection Act of
2012) became a law.

295Chapter 6: Congress

Lee, Francis. Insecure Majorities: Congress and
the Perpetual Campaign. Chicago: University of
Chicago Press, 2016. Explains how the battle for
majority control leads to polarized conflict and leg-
islative paralysis in Congress.

Mayhew, David R. Congress: The Electoral
Connection. New Haven, CT: Yale University Press,
1974. Classic analysis of how electoral incentives
shape almost every aspect of congressional organi-
zation and behavior.

Rohde, David W. Parties and Leaders in the
Postreform House. Chicago: University of
Chicago Press, 1991. Explains the decline and
resurgence of party unity in the House over the

past several decades, paying special attention to
how the reforms of the 1970s fostered greater

Sinclair, Barbara. Unorthodox Lawmaking: New
Legislative Processes in the U.S. Congress. 5th ed.
Thousand Oaks, CA: CQ Press, 2016. Explains
how and why Congress has increasingly ignored its
own standard legislative procedures to get its work

Smith, Steven S. The Senate Syndrome. Norman:
University of Oklahoma Press, 2014. An account
of how increasingly polarized partisan conflict has
fundamentally transformed the Senate in recent


1. How do the differences between the House and
the Senate reflect the competing interests of
small and large states?

2. How does the electoral system established by
the Constitution differ from that of other parlia-
mentary democracies?

3. What constraints are placed on states when they
draw districts for congressional elections? How
can parties give their members an advantage
through districting?

4. Why does the House have stricter rules and
greater leadership control than does the Senate?
How do these differences affect the day-to-day
operation of the chambers?

5. If members are elected by majorities from
their districts, why do interest groups some-
times prevail, even in conflicts with majority

6. Why have leaders adopted unorthodox proce-
dures to enact legislation?

President Trump showing reporters his most recent executive order.
REUTERS/Kevin Lamarque


The Presidency7

• What happened historically to transform the president from
the “chief clerk” of the government to the nation’s foremost

• All modern presidents seek the public’s support for their
policies. But does their ability to sway public opinion really
help them in dealing with other politicians in Washington,
and if so, how?

• How has divided party control and gridlock in Washington
hindered presidents’ leadership on some issues while
liberating them on others?

• How do presidents’ increased use of unilateral action alter
the role of Congress and the federal judiciary in making
national policy?

• How do the centralization of administration in the presidency
and the growth of the office’s institutional resources go hand
in hand?


7.1 Understand the historical role
of the presidency.

7.2 Describe how the presidency
has transformed into the
nation’s problem solver.

7.3 Summarize the president’s role
as commander in chief and
head of state.

7.4 Characterize the president’s
authority as the chief

7.5 Explain the significance of the
president’s veto power.

7.6 Describe the presidential
strategy of going public.

7.7 Explain how the presidency
developed as an organization
over time.“America does not stand still, and neither will I,” declared

President Obama in his State of the Union address at the
beginning of the 2014 session of Congress. He added, “So
wherever and whenever I can take steps without legislation
to expand opportunity for more American families, that’s
what I’m going to do.” Television viewers may have missed
the significance of the president’s promised “year of action.”
Some members of Congress attending the address may have
mistakenly chalked up his comments to little more than
grandstanding rhetoric. Yet they would have been wrong to
do so. Stymied by a Republican-controlled Congress during
much of his first term, President Obama had already begun
unilaterally trying to achieve his policy goals. After Congress
failed to enact the DREAM Act, in the summer of 2012 the
president had instructed the Department of Homeland Security
to defer deporting young illegal immigrants who had arrived

298 Part II: The Institutions of Government

in the United States before the age of five and had lived in the country for at least five
years. By some estimates, over 1 million of these young immigrants could now register
for temporary residency and work permits.

This action gave Republican leaders reason to believe that the president’s State of the
Union threat to go it alone portended more of the same. And they were correct. Over the
next twelve months, President Obama continued to enlist executive actions that arguably
dwarfed those issued earlier. During his last term with Republicans firmly controlling
Congress, the president issued executive orders that extended overtime pay for millions
of salaried workers, that prohibited federal contractors from discriminating against
employees and job applicants based on their sexual orientation, and that extended deferred
immigration enforcement of the parents of the children covered by this earlier unilateral
action. These and other executive actions had Republicans (and Fox News) screaming
for impeachment. They also went to court and succeeded in winning injunctions against
numerous Obama orders, including the extension of DACA to family members.

Close observers of Washington politics attributed Obama’s actions and the resulting
contretemps to the highly polarized Republican and Democratic parties’ divided
control of Congress and the presidency. Certainly, the partisan rhetoric had become
toxic with efforts of both parties’ moderates to foster compromise legislation failing on
every important bill.

Donald Trump’s victory in the 2016 election surprised virtually everyone who
followed the campaigns and polls. Almost as shocking for Democrats, Trump’s
victory created a long coattail on which Republican majorities rode into both the
House of Representatives and Senate. The 2016 Republican sweep appeared to rescue
the new president from having to follow President Obama’s go-it-alone, unilateral
policymaking. Yet this is precisely how Trump proceeded. The president-elect
instructed his staff to identify those campaign promises he could deliver immediately
through executive order. He followed this up during his first weeks by issuing travel
bans from a number of mostly Muslim countries, authorizing construction of the
controversial XL gas pipeline, withholding federal grants to punish states and
cities that refused to cooperate fully with immigration enforcement, unbridling the
petroleum industry from Obama regulations, and loosening rules for employers in
purchasing health insurance for employees. Add to these twenty-five more executive
orders Trump issued during his first month in office. Altogether during his four years in
office, President Trump issued 186 executive orders and 167 memoranda.

Even these numbers may understate Trump’s disregard for separation of powers and
his place within it. When caught by surprise during a news interview by the question
of whether he had any plans to prevent children born in the United States from
automatically becoming citizens, the president replied that his legal team had told him

299Chapter 7: The Presidency

that he could reverse this policy through an executive order. (As we noted in Chapter 2,
birthright citizenship is explicitly provided for in the Fourteenth Amendment.) “It was
always told to me that you needed a constitutional amendment. Guess what? You don’t,”
Trump said, declaring that he could do it by executive order. When the interviewer
questioned the legality of this approach, Trump replied, “You can definitely do it with an
act of Congress. But now they’re saying I can do it just with an executive order. . . . It’s in
the process. It’ll happen . . . with an executive order.” As we found in chapter 4, recission
of Obama’s DACA proved more difficult than he realized. An adverse Supreme Court
ruling in 2020 sent the administration scurrying to develop a judicially defensible
cessation of the program before it left office.

Almost every month during his presidency, President Trump conjured up a new
“magical” (his description) presidential power. Although a large share of administration
policies that came via presidential instructions failed to survive judicial challenge, they
point the way for future presidents facing implacable opposition majorities in Congress.
Within a week of being declared the winner, President-elect Joe Biden was already
looking for ways to dismantle his predecessor’s policies administratively.

Unquestionably, the modern presidency is a powerful office. Yet it lacks Congress’s
broad scope and detailed powers of Article I. With the exception of the section dealing

An Iranian-born science researcher holds out his boarding pass for a U.S.-bound flight just one week after
President Donald Trump signed an executive order temporarily banning immigrants and refugees from
seven Muslim-majority countries—including Iran—from traveling to the United States. Federal district courts
quickly blocked the travel ban; eventually, the Supreme Court approved a revised ban and lifted the injunction
preventing the ban’s implementation.
AP Photo/Antonio Calanni

300 Part II: The Institutions of Government

with the office as commander in chief, Article II reads like an afterthought. From time
to time presidents should report to Congress on the state of the nation; presidents may
ask the bureaucracy for information, but there is no hint of centralized administration;
presidents can appoint government officials, but one president (Andrew Johnson) was
impeached when he removed a cabinet secretary. The veto sums up the president’s
legislative authority. It is not intended to confer any positive power on the executive.
Rather, the presidency offered a convenient office with which to check Congress. How
did we get from an office with modest authority to our modern presidents who seem to
think that public policy is theirs to make with a stroke of the pen?

The Historical Presidency
The trick in designing an energetic presidency lies in avoiding a Napoleon or Hitler, an
ambitious individual who would exploit temporary advantages during a national cri-
sis to permanently alter the constitutional order. By rejecting a plural office, the Framers
accepted the proposition that, unlike the bicameral legislature, the executive should con-
tain none of the internal checks provided by institutional design (described in Federalist

No. 51) or factions (Federalist No. 10).
The Constitutional Convention del-
egates finally solved the dilemma by
giving the executive enough resources
to coordinate national responses
during emergencies but insufficient
authority to usurp the Constitution.
They achieved this objective—at least
to the satisfaction of the majority that
enacted Article II—by withholding
certain executive powers, such as broad
and easily invoked emergency powers
that executives in other presidential
systems have sometimes employed to
get the upper hand over their political
opponents. Power gravitates toward
the office during moments of national
urgency, but it does not involve sus-
pension of other governmental actors’
constitutional prerogatives. It remains
confined to dealing with the emer-
gency, and it dissipates as the crisis
recedes or the government’s response
appears to fall short.

Introduced by their member of Congress in return for past political support,
nineteenth-century job seekers, hats in hand, approach the president for
positions in his administration.
Courtesy of the Library of Congress Prints & Photographs Division

301Chapter 7: The Presidency

During the Republic’s first century, presidents typically assumed a diminutive role
as a governmental actor. Their accomplishments were mostly limited to their responses
to wars, rebellions, and other national crises. In fact, early presidents played a larger role
in conferring benefits to their political parties. Daily, filling vacancies in a growing fed-
eral bureaucracy consumed most of nineteenth-century presidents’ time. Throughout
the century, all federal employees—from the secretary of state to the postmaster in
Cody, Wyoming—were appointed directly by the president or one of his agents. Large
chunks of presidents’ daily calendars were devoted to interviewing job seekers, listening
to their party sponsors, and signing appointment letters. And because party colleagues
in Congress and national party committees expected their nominees to be appointed,
presidents derived little political advantage from their appointment authority. Rather,
theirs was a thankless task, befitting a clerk. “For every appointment,” President Grover
Cleveland observed ruefully, “I make one ingrate and ten enemies.” Presidents took spe-
cial care, however, in naming their cabinets. After all, these department heads represented
impor tant factions and interests within the president’s party that had to be served if the
president hoped to win renomination and reelection.

The Era of Cabinet Government
Nineteenth-century Congress routed all matters related to administration and policy
through the appropriate department secretary. When a president had a question about a
policy, needed clarification on complaints or rumors about an agency head’s performance,
or sought advice on whether to sign or veto a bill, he consulted his cabinet. Indeed, the
nineteenth-century department heads composing the cabinet routinely performed much
of the work now carried out by the president’s staff.

Clearly, a strong cabinet did not necessarily make for a strong president. Cabinet
appointees, who were resourceful, independent, and frequently ambitious politicians,
could not be expected to subordinate their own welfare and that of their department to
the needs of their titular leader. An adviser to President Warren G. Harding may have
only slightly exaggerated a basic truth in remarking, “The members of the cabinet are
the president’s natural enemies.”1 Thus a pattern of intersecting interests characterized
president-cabinet relations: presidents selected their department heads for their political
assets, such as their influence with a particular wing of their party in Congress or with
the electorate (refer to Strategy and Choice box, “Lincoln and His Cabinet”). Those who
joined the cabinet, however, were likely to pursue their own political and policy objec-
tives and, perhaps incidentally, the president’s (if indeed he harbored any). The result was
a partnership based not on loyalty but on reciprocity: cabinet members helped the pres-
ident achieve his limited political goals, and, by their cabinet appointment, he afforded
them opportunities to pursue their agendas.

The modern cabinet has lost much of its luster as an attractive office—that is, one
with real political clout. Control over policy and even of department personnel has grav-
itated to the Oval Office—an important trend we track more fully shortly. Consequently,
whereas ambitious politicians in the nineteenth century saw a cabinet post as a

302 Part II: The Institutions of Government


Lincoln and His Cabinet
Upon taking office in 1861, Republican
president Abraham Lincoln confronted a
nation threatening to dissolve. He also had to
contend with a weak, young Republican Party
composed of politicians who only recently had
coalesced for the sole purpose of defeating the
majority Democratic Party. To keep the party
coalition together, Lincoln filled his cabinet
with Republican leaders, even some of his rivals
for the presidency.a Secretary of the Treasury
Salmon Chase and Secretary of State William
Seward, Lincoln’s principal rivals for the
presidential nomination, strongly disliked each
other, but their support within the party and
Congress kept both in Lincoln’s cabinet.

Other cabinet officials of lesser stature but
with impeccable political credentials were
Pennsylvania’s corrupt party boss and senator
Simon Cameron, who was forced to resign
the post of secretary of war, and Maryland
Republican Party leader Montgomery Blair,
who oversaw the patronage-rich Post Office
Department. Blair’s presence in the cabinet

proved critical for he muscled the Maryland state
legislature to defeat narrowly a motion calling for
Maryland to secede from the Union.

Perhaps the most formidable cabinet member of
all was the brusque Edwin Stanton, Cameron’s
replacement as secretary of war and a leader
of the “war Republicans” in Congress. At times
this gave him a veto over policy. “Stanton and I
have an understanding,” Lincoln wrote a friend.
“If I send an order to him which cannot be
consistently granted, he is to refuse it. This he
sometimes does.