US POLITICS MODULE 3 ES…SAY

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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
inscribed.

Columbia College, N.Y.
August 1st, 1833.

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Los Angeles | London | New Delhi | Singapore | Washington DC | Melbourne

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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Library of Congress Cataloging-in-Publication Data

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—
Textbooks.

Classification: LCC JK276 .K47 2021 | DDC 320.47301—dc23
LC record available at https://lccn.loc.gov/2020049384

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

xviii

Preface

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

xixPreface

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.

Approach
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

xxiPreface

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
chapter.

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 sagepub.com or contact your
SAGE representative at sagepub.com/findmyrep.

Acknowledgments
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
events.

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;

xxiiiPreface

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
mistakes.

Roberta Adams, Salisbury University

Danny M. Adkison, Oklahoma State
University

E. Scott Adler, University of Colorado

Scott H. Ainsworth, University of
Georgia

Richard A. Almeida, Francis Marion
University

Ellen Andersen, University of Vermont

Phillip J. Ardoin, Appalachian State
University

Ross K. Baker, Rutgers University

Lawrence A. Baum, Ohio State
University

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
Crosse

Christopher Bonneau, University of
Pittsburgh

Shenita Brazelton, Old Dominion
University

Jeremy Buchman, Long Island
University

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
University

Katharine Destler, George Mason
University

John Domino, Sam Houston State
University

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
University

John B. Gilmour, College of William &
Mary

Lawrence L. Giventer, California State
University–Stanislaus

Brad Gomez, Florida State University

Craig Goodman, University of
Houston–Victoria

Sanford Gordon, New York
University

Andrew Green, Central College

Paul Gronke, Reed College

Edward B. Hasecke, Wittenberg
University

Danny Hayes, George Washington
University

Valerie Heitshusen, Georgetown
University

Richard Herrera, Arizona State
University

Marc Hetherington, Vanderbilt
University

Leif Hoffman, Lewis-Clark State
College

Brian D. Humes, Georgetown
University

Jeffery Jenkins, University of Virginia

Joel W. Johnson, Colorado State
University–Pueblo

Paul E. Johnson, University of Kansas

Nicole Kalaf-Hughes, Bowling Green
State University

Chris Koski, James Madison University

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

xxvPreface

Tracy F. Munsil, Arizona Christian
University

Timothy Nokken, Texas Tech University

Shannon O’Brien, University of Texas at
Austin

Bruce I. Oppenheimer, Vanderbilt
University

L. Marvin Overby, University of
Missouri–Columbia

Carl Palmer, Illinois State University

Hong Min Park, University of
Wisconsin–Milwaukee

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
University

Jason Roberts, University of Minnesota

Beth Rosenson, University of Florida

Mikhail Rybalko, Texas Tech University

Eric Schicker, University of
California–Berkeley

Ronnee Schreiber, San Diego State
University

Mark Shanahan, University of Reading

Charles Shipan, University of Michigan

David Shock, Kennesaw State University

James D. Slack, University of Alabama at
Birmingham

Charles Anthony Smith, University of
California, Irvine

Carl Snook, Southern Polytechnic State
University

Tara Stricko-Neubauer, Kennesaw State
University

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
Michigan

Wendy Watson, University of North
Texas

Christopher Weible, University of
Colorado–Denver

Patrick C. Wohlfarth, University of
Maryland–College Park

Frederick Wood, Coastal Carolina
University

Garry Young, George Washington
University

Carolyn Abott, St. John’s University

Mike Brown, Emerson College

Terry Filicko, Clark State Community
College

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.

xxvi

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
pandemic.
REUTERS/Bryan Woolston

1

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

CHAPTER OBJECTIVES

1.1 Summarize the importance
of institutional design in
governance.

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
action.

1.5 Relate the different ways that
representative government
works.

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
application.

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.

Coordination
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
Nominee

0

10

20

30

40

50

60

40

57

43

56

43

51

Pe
rc

en
t f

or
C

an
di

da
te

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

VICTOR MATURE

STAYS SILENT CONFESSES

BETTY GRABLE
STAYS SILENT

CONFESSES

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

145
288
478
529
529
538
690
871
1,129
1,464
2,249
2,824
3,658
3,802
4,458
4,737
6,698
9,765
10,337
12,074
12,118
21,275
23,369

45,472
45,927
55,237

685,957

1
1.8
1.7
2.1

1.5

1.8

2.4
1.6

2

1.5

1.8
2.1
3.6

Military spending (millions of U.S. dollars)

Estimated share of GDP (percent)

Albania
Luxembourg

Slovenia

Lithuania
Latvia

Estonia
Croatia
Bulgaria

Slovak Republic
Hungary

Czech Republic
Portugal
Romania
Denmark
Belgium
Greece
Norway

Netherlands
Poland
Spain
Turkey
Canada

Italy
Germany
France

United Kingdom
United States

1.3
1.1
1.2

1.2
1.1
1.1
1.3

1.2
0.9

1.2

0.9

1.1
0.5

1.3

Source: Adapted from NATO, “Defence Expenditure of NATO Countries (2010–2017),” March 15, 2018. https://www.nato.int/nato_static_fl2014/
assets/pdf/pdf_2018_03/20180315_180315-pr2018-16-en.pdf.

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
footing.

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
producers.

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
entertainment.

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
institutions.
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

British
Parliamentary

System

U.S. Presidential
System

Prime
Minister

Cabinet

House of
Representatives

Senate
President

House of
Commons

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

MixedPublic

Collective Benefits Private Benefits

Private

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.

KEY TERMS

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
institutional

design 6
offices 7

parliamentary
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

SUGGESTED READINGS

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.

REVIEW QUESTIONS

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
failed?

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

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
representative

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

33

The Constitution2
KEY QUESTIONS

• 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?

CHAPTER OBJECTIVES

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
independence.

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
Constitution.

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
politics.

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
demands.

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

DATE EVENT COLONIAL ACTION

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
(1765)

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)
published

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)

(Continued)

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
independence.

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

DATE EVENT COLONIAL ACTION

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
decisions.

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
Representatives

Council
of RevisionSenateVoters }

National
executive

State
legislatures

Judiciary

Elects
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
vote

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
Representatives)
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

C
on

gr
es

s
pa

ss
es

le
gi

sl
at

io
n,

c
on

tro
ls

th
e

fe
de

ra
l b

ud
ge

t,
ca

n
ov

er
rid

e
a

pr
es

id
en

tia
l v

et
o,

an
d

ca
n

im
pe

ac
h

an
d

re
m

ov
e

th
e

pr
es

id
en

t.

Th
e

Se
na

te
c

on
fir

m
s

to
p

ex
ec

ut
iv

e
br

an
ch

ap
po

in
tm

en
ts

a
nd

ra
tif

ie
s

tre
at

ie
s.

Th
e

pr
es

id
en

t c
an

v
et

o
le

gi
sl

at
io

n.

C
ongress can im

peach federal judges, set the size

of the Suprem
e C

ourt and the jurisdiction of low
er

courts, and determ
ine judicial salaries and budgets.

The Senate confirm
s all federal judges.

C
ourts can declare law

s unconstitutional.

C
ongress can im

peach federal judges, set the size

of the Suprem
e C

ourt and the jurisdiction of low
er

courts, and determ
ine judicial salaries and budgets.

The Senate confirm
s all federal judges.

C
ourts can declare law

s unconstitutional.

The president nominates Supreme Court
and other federal judges.

Courts can declare laws unconstitutional. President/
Executive
Branch

Congress/
Legislative

Branch

Supreme
Court (and

federal courts)/
Judicial Branch

iStock.com/
VisualField

iStock.com/
albertdebruijn

iStock.com/oddSm66

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

oror

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

Slavery
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
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

AMENDMENT PURPOSE

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
compensation

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
expires.”

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
representative.

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.*

Command
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

DESIGN PRINCIPLE DEFINING FEATURE EXAMPLE

Command Authority to dictate others’
actions

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
chamber

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

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
behalf

Representation,
bureaucracy

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
prosperity.

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]

AK
President Trump Your State Governor

50%
55%

53%
59%

66%

66%
67%

56%

52%
56%

54%
39%

71%

68%
69%

69%

69%

63%

63%
63%

67%

67%
68%

63%

53%

54%
49%

64%

64%

62%

62%
60%

61%

61%

75%
71%

58%
78%

75%

74%

76%

83%

62%

60%
56%

72%

72%

72%

81%

80%
80%

60%
71%

53%
45%

34%

36%
28%

40%
47%
47%

32%
46%

39%
55%

52%

51%
50%

38%
38%

36%
45%

42%
48%
48%

50%

53%
55%

39%
40%

41%

51%
51%

34%
40%

37%
47%

45%

44%

44%
47%

32%
34%

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

39%
57%

59%

52%

41%
40%

47%

48%

42%

AL
AR
AZ
CA
CO
CT
DC
DE
FL
GA
HI
IA
ID
IL
IN

KS
KY
LA

MA
MD
ME
MI

MN
MO
MS
MT
NC
ND
NE
NH
NJ

NM
NV
NY
OH
OK
OR
PA
RI

SC
SD
TN
TX
UT
VA
VT

WA
WI

WV
WY

Source: A 50-State COVID-19 Survey, https://covidstates.org/.

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.”*

Veto
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*

MOTION VOTING RULE

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

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

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

Delegation
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. https://policyintegrity.org/trump-court-roundup

KEY TERMS

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

SUGGESTED READINGS

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
British.

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
chapter.

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

REVIEW QUESTIONS

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
branches?

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

89

Federalism3
KEY QUESTIONS

• 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
policy?

CHAPTER OBJECTIVES

3.1 Describe federalism and the
way it evolved in the United
States.

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
system.

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
government

Voters

Voters

Central
government

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

Examples: United Kingdom, France, and Japan

Confederation

State and local
government

Voters

Central
government

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

Example: United States under the Articles of Confederation

Federation

State and local
government

Central
government

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
.census.gov/data/tables/2017/econ/gus/2017-governments.html.

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
responsibilities
✯ 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
governments
✯ 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
constitutional.

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

10

0

20

30

40

50

60

19
43

19
41

19
39

19
37

19
35

19
33

19
31

19
29

19
27

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

POLITICS TO POLICY

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,
intervened.

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
uninsured.

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
.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/.

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
companies.”17

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

STRATEGY AND CHOICE

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
relations.

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
employers.

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
government.

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)

0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Local State Federal
20
14
20
17
20
20

20
11

20
07

20
03

19
99

19
95

19
91

19
87

19
83

19
79

19
75

19
71

19
67

19
63

19
59

19
55

19
51

19
47

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 https://www.census.gov/data/datasets/2019/econ/apes/annual-apes.html, and
Congressional Research Service, “Federal Workforce Statistics Sources,” https://fas.org/sgp/crs/misc/R43590.pdf.

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

LOGIC OF POLITICS

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.

(Continued)

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’
rights.

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.

(Continued)

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?

STATE
FEDERAL MATCH FOR
MEDICAID 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

PUBLIC LAW KIND OF MANDATE

Civil Rights Act of 1964 (Title VI)

Prevents discrimination on the basis of race, color, or national origin in federally
assisted programs

Crosscutting

Age Discrimination in Employment Act (1967)

Prevents discrimination on the basis of age in federally assisted programs

Crosscutting

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
preemption

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

(Continued)

126 Part I: The Nationalization of Politics

PUBLIC LAW KIND OF MANDATE

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

KEY TERMS

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

SUGGESTED READINGS

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
government.

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
bureaucracy.

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
assumed.

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.

REVIEW QUESTIONS

1. What are the main differences between unitary
governments, confederations, and federal gov-
ernments? Which type of government is most
common?

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
arrangements?

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

131

Civil Rights4
KEY QUESTIONS

• 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
protection?

CHAPTER OBJECTIVES

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+
community.

4.5 Assess the role of collective
action efforts in the civil rights
movement.

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. https://www.brookings.edu/blog/how-we-rise/2020/07/08/the-diversity-of-the-recent-
black-lives-matter-protests-is-a-good-sign-for-racial-equity/.
†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

% SAYING THEY _______ THE BLM
MOVEMENT

% SAYING THEY HAD ____ ABOUT
RACE

STRONGLY
SUPPORT

SOMEWHAT
SUPPORT

CONVERSATION
WITH FAMILY/

FRIENDS
ATTENDED A

PROTEST

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
housing.

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

R.I.

MISS.

INDIANA

OHIO

PENNSYLVANIA

NEW YORK

MAINE
admitted
as free
state,
1820

VERMONT

NEW
HAMPSHIRE

MASS.

CONN.

NEW JERSEY

DELAWARE
MARYLAND

VIRGINIA

NORTH
CAROLINA

SOUTH
CAROLINA

KENTUCKY

FLORIDA
TERR.

Annexed
1819–1821

GEORGIAALABAMA

LOUISIANA

TENNESSEE

Ceded to Great Britain, 1818

Ceded by Great Britain, 1818

UNORGANIZED
LOUISIANA TERRITORY

ROCKY

ARKANSAS TERRITORY

OREGON COUNTRY
(Held jointly by

United States and
Great Britain)

SPANISH POSSESSIONS

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

ILLINOIS

MISSOURI
admitted as
slave state,
1821

ATLANTIC
OCEAN

GULF OF MEXICO

PACIFIC
OCEAN

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. www.cengage.com/permissions.

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

STRATEGY AND CHOICE

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
slavery.

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
Preserved.”
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
servitude.

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.”
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