American Government Lecture Eleven
Government and politics affects nearly every aspect of society. Violent video games? The U.S. Supreme Court ruled, by a narrow 5-4 majority, that they are protected as free speech under the First Amendment. Of course, that does not make violent video games right, but it does affect how many people play them, and whether State legislatures can pass laws limiting their use by children.
How are churches affected by government and politics? The free exercise clause of the First Amendment protects churches in many ways. Taxation of church property and minister's salaries are not allowed. What is said in a church receives greater protection against government regulation than what is said in a business. The police are reluctant to search a church; judges are reluctant to issue a search warrant for them to do so. In a 9-0 ruling, the U.S. Supreme Court recently held that churches can fire key employees for almost any reason, without having to worry about the regulations and laws that apply to businesses.
A good understanding of government and politics also enables students to understand American history better, and to recognize the differences among the States today. Why was Philadelphia the biggest and most prosperous city in the colonial era? It was the colony that welcomed settlers the most, and was based on strong Christian values. Only Pennsylvania prohibited gambling, and those strong moral values enabled it to thrive and prosper. Its founder, William Penn, learned firsthand in England the consequences of interference with the free exercise of religion. Fortunately, he was acquitted of the criminal charges against him (for preaching his religion), due to jury nullification.
The Supremacy Clause
Perhaps the most important clause of the U.S. Constitution is in Article VI, known as the "Supremacy Clause":
|“||This Constitution and the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitutions or Laws of any State to the Contrary notwithstanding.||”|
The meaning of this provision is that all federal law, rules, regulations and federal court decisions "trump" (preempt) any State law that is contrary.
Let's take a simple example. Suppose a conservative School Board for a public school district passed a rule allowing teachers in its public schools to hold classroom prayer. The School Board observes that it has the authority to set the rules for teachers and students in its school district. Would that new rule about classroom prayer be enforceable?
No, because of the Supremacy Clause, which requires that the federal court decision by the U.S. Supreme Court in Engel v. Vitale take precedence, and preempt (trump) the local law to the contrary.
That was an obvious example. Here is an example that is not so obvious. In 1816, Congress and the President established The Second Bank of the United States. In 1818 the State of Maryland sought to impose taxes on that bank for its operations within Maryland. The national bank challenged the tax, and the case ended up in the U.S. Supreme Court for a final decision.
In a 7-0 decision, the U.S. Supreme Court held that The Second Bank of the United States could not be taxed by any of the States, due to the Supreme Clause. (There were only 7 Supreme Court Justices then; today there are 9 Justices. Federal statutes, which can be changed, establish how many Justices comprise the U.S. Supreme Court.)
The decision, written by Chief Justice John Marshall, emphasized that federal law takes precedence over State law. While States have the authority to impose taxes, States are prevented by the Supremacy Clause from taxing the federal government or entities that it creates.
This decision, entitled McCulloch v. Maryland, 17 U.S. 316 (1819), contains this famous truth:
|“||The power to tax is the power to destroy||”|
This McCulloch v. Maryland decision is important for another reason too. The Court held that Congress has unenumerated powers that are not expressly given to it by the U.S. Constitution. Nowhere in the Constitution is the power to create a national bank given to the federal government. But under the "Elastic Clause" (also known as the "Necessary and Proper Clause") of the U.S. Constitution, Congress has the power to "make all laws which shall be necessary and proper for carrying into execution." That clause has been used repeatedly by Congress to make laws where it does not have an express grant of power by the Constitution to do so.
The Supremacy Clause continues to invalidate state laws. In 2011, the Supreme Court ruled that the Federal Arbitration Act (which requires that courts generally enforce arbitration agreements) preempts state laws that have the effect of requiring class action procedures to be available in consumer disputes. AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). And in 2012, the Supreme Court prevented Arizona from enforcing its immigration enforcement bill SB 1070, stating that the federal government has taken over the exclusive area of enforcement of immigration law, and therefore Arizona cannot enforce some of the provisions of SB 1070. Arizona v. U.S., 132 S.Ct. 2492 (2012)
"The Power to Tax"
All States have the full authority to tax individuals and businesses, and there are many examples of that today: income taxes, sales taxes, tolls on roads, and even taxes on services like pest control.
The colonies/States were reluctant to give the power to tax to the new national government in the 1780s. The first attempt at a national government, through the Articles of Confederation, did not give the United States government the power to tax. Instead, it was voluntary: the national government requested funding from the States on a voluntary basis. That was not successful, especially when times were difficult after the American Revolution. The national government under the Articles of Confederation in the mid-1780s struggled simply to raise money for its operations.
The U.S. Constitution give the new national government the authority to raise money by taxing imports (goods shipped from foreign nations) and interstate commerce, and denied the States their longstanding power to raise money in that manner. This was a massive shift in power from the States to the federal government. Rhode Island refused for several years, even after George Washington was president, to ratify the Constitution and join the United States, because Rhode Island raised its money by taxing imports into its harbors along the Atlantic Ocean (including the slave trade). (The Constitution does prohibit any taxes on exports -- goods shipped from our Nation to foreign nations -- by the federal government.)
But the original U.S. Constitution limited the power of the government to tax individuals, in Article I, Section 9, Clause 4:
|“||No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.||”|
This meant that a direct income tax on individual Americans could only be imposed in proportion to how many people lived in an area, rather than in proportion to how much money they make. Wealthy areas could not be taxed more than poor areas. As result, the federal government could not easily impose an income tax like what exists today.
Instead, the federal government taxed real estate, slaves, carriages, and things other than income. But this did not amount to much revenue for the federal government. Most of its revenue through the late 1700s and 1800s was in the form of tariffs: taxes on imports.
In 1895, a close vote by the U.S. Supreme Court invalidated a federal income tax because it was a direct tax that was not apportioned as required by the U.S. Constitution. Pollock v. Farmers' Loan & Trust Co. Congress continued to be without the power to impose a federal income tax for nearly another two decades.
Then, in 1909, Congress passed the proposed Sixteenth Amendment to give it the power to impose income taxes without limitation. Because Congress does not have the power to amend the Constitution by itself, this went to the States for ratification. At that time there were 48 States (Hawaii and Alaska had not yet joined), so the 3/4 requirement for ratification of a new amendment was 48 times 3/4, which equals 36 States.
The Sixteenth Amendment removes the limitation on income taxes by the federal government that was in the original Constitution. The Sixteenth Amendment is as follows:
|“||The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.||”|
Many Americans opposed ratification of this Amendment, which had the effect of transferring enormous power to the federal government. It took nearly four years for this amendment to be ratified by 3/4 of the States, in 1913.
Types of taxes
There are two general categories of taxes, "direct" and "indirect". A "direct" tax is how the Roman Empire funded itself: each adult must directly pay a certain tax, whether he has income or not. Jesus and the Apostles had to pay to this too, as they were in the Roman Empire. Another example of a "direct" tax is a tax on real estate, which the federal government imposed in its early years but now which are imposed almost entirely by State and local governments.
Most taxes are "indirect" in nature, such as "excise taxes." An excise tax is based on an activity, such as a sale of a product from a business to a customer. It is a tax on activity rather than on a person or on property itself. An example of indirect or excise federal taxes are the taxes on gasoline and telephone bills.
The distinction between "direct" and "indirect" taxes is important because the original U.S.Constitution, in Art. I, Section 9, Clause 4, limits "direct" taxes to the federal government to what can be apportioned among the population. This prevents the federal government from taxing wealthy areas or people more than poor areas or people. If a tax is "indirect", then it is not limited by this provision, which enables the federal government to tax business activity without limitation. But with respect to individual income, the Sixteenth Amendment gives the federal government unlimited power to impose taxes in any way it chooses.
The lawsuits against ObamaCare have reopened this issue because ObamaCare imposes a penalty (under Congress's taxation power) on non-exempt people who fail to purchase adequate health insurance. It is not an income tax, so it should not be authorized by the Sixteenth Amendment. It is not an excise tax, because it applies when there is no activity (declining to purchase government-approved insurance). Is it a "direct" tax? If so, then it would not be allowed unless it is apportioned by population, such that wealthy people pay no more than poor people. But if it is not a direct tax, then Article I, Section 8, Clause 1 may allow it: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." Lawsuits are pending to challenge ObamaCare based on what kind of tax it imposes, and the federal courts will be deciding this issue in the next year or so.
"One man, one vote"
For 200 years, including prior to the ratification of the U.S. Constitution, State legislatures have decided for themselves how they would carve their own legislative districts at the State level. All states (except Nebraska) have a "bicameral" legislature consisting of a house of representatives (call the "Assembly" in New Jersey), and a state senate. The internal division of those districts within a State had long been considered a matter for only the state legislature to decide, without any interference by the federal government. For example, should Newark be included in the same district as Morristown? Should senate districts be based on county lines, or on population? The U.S. Senate is not based on population, but on State boundaries.
In a decision having vast significance, the U.S. Supreme Court ruled in 1964 that States must draw their districts to comply with a rule of "one man, one vote" (or "one person, one vote"). This means that districts must be drawn such that the population size of each district is nearly equal. This is called "one man, one vote" because it requires that the relative weight of each man's vote is the same no matter where he lives in the State. His vote cannot be crowded out by living in a district drawn to have a bigger population than other districts in the State.
The decision, based on the Equal Protection Clause of the 14th Amendment, was Reynolds v. Sims (1964):
|“||the Equal Protection Clause requires that both houses of a state legislature be apportioned on a population basis||”|
Reynolds v. Sims, 377 U.S. 533, 583 (1964). The Supreme Court thus required of States something that is not required of the U.S. Senate.
Four years later, a 5-3 decision of the U.S. Supreme Court extended the same requirement to county, city and town legislatures also:
|“||the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.||”|
Avery v. Midland County, 390 U.S. 474, 485-486 (1968). (By "single-member districts" Justice White is referring to a district that elects only one representative for it.)
Many State legislatures were outraged by these decisions, which they viewed as a burdensome, unjustified infringement on their state sovereignty. Talk began of passing a constitutional amendment to overturn these decisions, just as other constitutional amendments have overturned prior Supreme Court decisions in the past (such as the 11th and 16th Amendments).
Irony of political history
In the 1960s one of the most powerful U.S. Senators was Everett Dirksen, who represented Illinois and served as its floor leader. A Senate office building in D.C. bears his name today, in reflection of how well-liked and influential he was.
The colorful Senator Dirksen personified the U.S. Senate to the American public, as he had a charm and flair far greater than any politician today, as described by the Senate archives:
|“||His physical appearance, his dramatic flair, his cathedral-organ voice: all these attributes made him the personification of [a famous fictional senator in radio entertainment]. He was the grand marshal of the Tournament of Roses parade; he pioneered a televised weekly press conference with his House counterpart; and, with a narrative album entitled Gallant Men, he became a recording star. The hordes of admiring tourists who flocked to his leader’s office in the Capitol forced him to remove his name from its door. ... He gained national attention in 1950 when he unseated the Senate Democratic majority leader in a bitter Illinois contest. ... [A]s a supremely creative and resourceful legislator, Dirksen routinely influenced the agenda of the majority-party Democrats. ... Cautioning that federal spending had a way of getting out of control, Dirksen reportedly observed, 'A billion here, a billion there, and pretty soon you're talking real money.'||”|
Senator Dirksen proposed a constitutional amendment to overturn the Supreme Court decision in Reynolds v. Sims, and made this statement:
|“||the forces of our national life are not brought to bear on public questions solely in proportion to the weight of numbers. If they were, the 6 million citizens of the Chicago area would hold sway in the Illinois Legislature without consideration of the problems of their 4 million fellows who are scattered in 100 other counties. Under the Court's new decree, California could be dominated by Los Angeles and San Francisco; Michigan by Detroit.||”|
But Democrats opposed Dirksen's proposed amendment, and in Illinois (Dirksen's home state) they added a special provision to the Illinois (State) Constitution to require a 3/5th majority in order to ratify any constitution. By increasing the threshold for ratifying constitutional amendments from 51% to 60%, Democrats hoped to block Dirken's constitutional amendment to overturn Reynolds v. Sims.
Dirksen's constitutional amendment never passed the U.S. Senate, which was heavily controlled by Democrats. But the 3/5th requirement remains in the Illinois Constitution, and a few years later Illinois became the key battleground State for the proposed Equal Rights Amendment, which did pass Congress and 35 States. Democrats were then unable to attain the 60% threshold, which they insisted upon to block Dirksen's proposed amendment, in order to ratify the proposed Equal Rights Amendment, which they wanted.
The Voting Rights Act of 1965
The Voting Rights Act of 1965 is one of the most important and burdensome of all federal laws. Enacted pursuant to the 15th Amendment (which prohibits racial discrimination in voting laws), the Voting Rights Act requires pre-clearance by the U.S. Department of Justice of any changes in election laws by certain states and local government. Most of the States covered by the Voting Rights Act are in the South (including Florida and Texas), while some of the counties are located in unexpected places around the Nation (including New York). The Voting Rights Act prohibits changes to election laws in covered states that "[have] the purpose [or] will have the effect of denying or abridging the right to vote on account of race or color."
The basis for the law and where it applies is this: if there is any evidence of racial discrimination in how elections are run by a State or local government, then it can be designated as subject to the Voting Rights Act for future elections. The Act was enacted by an overwhelmingly Democrat-controlled Congress and president in order to exert greater federal control over the election process, and was subsequently applied against States (like Alaska) that had a history of discrimination against other minority groups (like American Indians and Hispanics). Congress declared the purpose of its pre-clearance provision to shift the burden to States:
|“||Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.||”|
South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966) (citation omitted).
You might be surprised what is considered to be racial discrimination that triggers application of the Voting Rights Act for all future elections. In Texas, officials did not print a Spanish version of the ballot in one election, and in a 1975 reauthorization of the Voting Rights Act, the criteria for coverage under Section 4 were written to include Texas based upon this action. Indeed, ballots now have to be printed at enormous local expense in numerous foreign languages, not merely Spanish, or else the Voting Rights Act could be applied against the state or local government.
The Voting Rights Act requires "pre-clearance" by the U.S. Department of Justice for any changes in election law by a state or local government that is covered by the Act. When South Carolina passed its voter ID law, the Voting Rights Act gave the Obama Administration the power to delay and object to the law, because South Carolina is covered by the Voting Rights Act. Even though there is nothing overtly racial about South Carolina's voter ID law, the Voting Rights Act has been used to force states to ensure that changes to voting procedures do not have discriminatory purpose or effect.
Florida attempted to trim back its early voting period for the last election, but the Obama Administration used the Voting Rights Act to object to that. The Voting Rights Act gives the federal government extraordinary powers to grant or deny "pre-clearance" necessary for any covered jurisdiction to make changes to its election laws.
These areas of the Nation are subject to the Voting Rights Act (note that New Jersey is not subject to it). These are known as "Section 5 Covered Jurisdictions":
Entire States that are Covered
- South Carolina
States Having Counties that Are Covered
- California (counties)
- Florida (counties)
- Michigan (townships)
- New Hampshire (townships)
- New York (counties)
- North Carolina (counties)
- South Dakota (counties)
The U.S. Supreme Court has taken a big case from Alabama that challenges the Voting Rights Act, and by June 2013 is expected to render a decision that may trim back the scope or influence of this law.
The decisions by the U.S. Supreme Court known as Brown v. Board of Education, in the mid-1950s, led to a practice by federal courts of ordering children of different races to be "bused" (carried by buses) to distant public schools in order to attain goals of full racial integration. By the late 1960s many schoolchildren were being transported by federal court order to attend another public school far from their homes, simply for the purpose of improving racial balance.
New Jersey was not as affected by this as other States were. "Busing" was ordered when there was evidence that a school district had been segregating students by race in the past. Public schools build after the Brown v. Board of Education decision were not subjected to busing because segregation was already illegal, and the public school district would not have a history of segregation. But older public school districts, particularly in the South and some parts of the Midwest, which had segregated students by race in the past and were not fully integrated by the 1960s, could be sued in federal court and ordered to implement busing of students based on their race.
Busing soon became an enormously controversial, and even affected the presidential elections in 1968 and 1972. In the summer of 1972, Congress passed a law delaying any orders by federal courts to desegregate public schools until all appeals were heard and decided. This prevented a single federal judge from forcing neighborhoods to bus their children to distant schools. A few months later, in the presidential election in November 1972, Nixon was elected in a landslide based in part on his criticism of busing. He swept the southern states that had traditionally been Democratic.
Today, there is rarely mention of "busing", and it has mostly disappeared. But racial politics remains the most powerful issue in politics and law to this day. A single comment about ethnicity can destroy a politician or anyone connected with the media. Many people have lost their job because of a single racial remark, no matter how much they try to explain or apologize for it.
In 2002, the Senate Majority Leader was the Republican Trent Lott, from Mississippi. At the 100-year birthday party of fellow Senator Strom Thurmond from South Carolina, Lott may a statement designed to flatter Thurmond:
|“||I want to say this about my state. When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over these years, either.||”|
Do you see why that short statement caused Trent Lott to resign as Senate Majority Leader? Think about this before reading the answer in the next paragraph.
Strom Thurmond ran for president in 1948, before Brown v. Board of Education ended racial segregation in public schools, and Strom Thurmond support racial segregation in schools as part of his campaign positions. The media then accused Lott of being a racist by saying the Nation would have been better off if Thurmond had won. Lott apologized repeatedly and profusely for his statement, and did not mean fo it to be a racist remark, but the media attention and controversy forced him to resign his leadership position, and about five years later he resigned from the Senate altogether.
Answer the first five questions, and then two of the remaining three, for a total of seven questions:
1. The Supremacy Clause may be the most important provision in the entire U.S. Constitution. Discuss.
2. What is the 16th Amendment, and how did it change the United States?
3. What is the Voting Rights Act, and what is your view of it? Is New Jersey covered by it - yes or no (no explanation needed for this question)?
4. Why did Rhode Island decline to join the United States initially, even after George Washington became president?
5. For what purpose does the Supreme Court use the "Elastic Clause" (or "Necessary and Proper Clause")?
6. Pick any Supreme Court decision described in this lecture, and explain it briefly.
7. "Be careful what you ask for" might describe which ironic part of political history?
8. Comment on a question that you missed in one of the quizzes taken so far in this course - and how you won't miss a question about it in the future.
Extra credit (answer two of the following four questions):
9. Even an offhand statement at a birthday party can have immense political consequences. Discuss.
10. Had you ever heard of "busing" prior to this lecture, and do you have an opinion about it? Explain.
11. Any issue in this lecture.
12. Any issue discussed in this entire course so far.
You can post your answers at American Government Homework Eleven.
- In a citation to a Court decision, it is important only to remember the year of the decision.
- The citation in the "United States Code" is 42 U.S.C. 1973c(a).
- Some opponents of voter ID laws try to compare them to Jim Crow era laws that sought to limit voting by blacks. Jim Crow era laws were written in a neutral manner but had the effect of preventing blacks from voting.
- "Section 5" refers to Section 5 of the Voting Rights Act. The federal government can add or subtract jurisdictions simply by issuing a federal regulation, without Congress actually approving the addition of a new State or county to the list.