Questions for Federalist #10

1. According to Madison, what is the most common and durable source of factions? According to Madison, where is the public good disregarded? According to Madison, what requires the most impartiality but offers the greatest temptation for a majority to “trample on the rules of justice?” Questions for Federalist #10

2. With the pseudonym “Publius” these articles were written by Federalists James Madison (4th President of the US), Alexander Hamilton (1st Secretary of the Treasury), and John Jay, (1st Chief Justice of the Supreme Court) The Federalist Papers

3. Factions: “The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.” This echoes the arguments of Aristotle and Machiavelli of the dangers inherent in democracy.

4. “that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” Madison connects the failure of government not to the government itself, but to the factions that exercise power over the government. This is a restatement of Rousseau.

5. Faction defined: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Small group, clear objectives, financial benefit, resources and a willingness to use them. 400 Americans possess more net wealth than the poorest 50% of American households.

6. A statement from Locke: “that it is unreasonable for men to be judges in their own cases, that selflove will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow.” “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?” Separation of powers

7. “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.” “the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” “But the most common and durable source of factions has been the various and unequal distribution of property.” Madison sees polarization as the default setting of human nature and seeks a solution to limit the tyranny of the majority through institutional construction. Passion of faction

8. “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” Apportionment of taxes “Every shilling with which they overburden the inferior number [or less powerful faction], is a shilling saved to their own pockets.” Zero sum game – Remember the LMS that instituted a property tax in Massachusetts.

9. Winners and losers in taxes

10. Madison identifies religion as one of the many sources of factions. “If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.” Religion is frequently used by the majority or the minority in power to justify their oppression of others. Feudal systems, slavery, imperialism, Sunni and Shia. Religion and factions

11. “Hence it is that such democracies have ever been spectacles 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.” An historical observation of the failures of democracy in the past. Democracy descends into increasingly polarized political factions striving for power until it finally erupts into Civil War or revolution.

12. Data from MIT. Polarized America: The Dance of Ideology and Unequal Riches by Nolan McCarty, Keith T. Poole and Howard Rosenthal http://voteview.com/polarized_america.htm

13. “Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.” All laws, rules, and institutions can be used for good or ill. It is primarily dependent on the intent of those who maintain power.

14. “Enlightened statesmen will not always be at the helm.”

15. “the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude.” “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.” Unless, of course, SuperPACs and industry groups organize to give them a common motive. Legislative size

16. Pick the illegal alien (undocumented worker) in this picture Chapter 3, Federalism

17. Claims of the 10th Amendment • Enable states to take action when the national government has not. • Flaw in the argument: Federal government has immigration laws that clearly need to be reformed, particularly in the area of enforcement. • Arizona’s law addresses enforcement issues through racial profiling. Contrary to 4th and 14th Amendment. • Borders on nullification of a sort. Does not like what the federal government is doing, so they do what they want • This is different from actual nullification in which a state ignores a federal law which it believes to be unconstitutional. IE AGs from several states challenging the constitutionality of healthcare reform. Arizona immigration law

18. “Paul Senseman, Brewer’s deputy chief of staff, is a former lobbyist for CCA. His wife continues to lobby for the company. Meanwhile Chuck Coughlin, who leads her re-election campaign, chaired her transition into the governorship, and is one of the governor’s policy advisors, is president of HighGround Public Affairs Consultants, which lobbies for CCA. This is important because CCA currently “holds the federal contract to house detainees in Arizona.” CBS 5 notes that the company currently bills $11 million a month to the state of Arizona and that, if SB-1070 is successfully implemented, its profits would be significantly padded as it would take responsibility for imprisoning immigrants arrested by Arizona police.” • Jilani, Zaid. 2010. “Prison Lobbyists Working For Az Gov. Brewer Are Set To Profit From Immigration Law She Signed”. Thinkprogress.org. July 26 Brewer and corrections corporation of america (CCA)

19. Federal government checks the power of the states, state governments check the power of the federal government. Both intended to keep the other from becoming oppressive to the people. When individuals discuss the separate rights of states, they are usually doing so in the context of the state wanting to limit the rights of citizens, contrary to federal laws. • Is the Arizona law oppressive to the citizens of Arizona? • What if you “looked” like an illegal immigrant? Point of federalism

20. Size matters: a geographically large state that covers a number of climates or incorporate a number of diverse cultures would be better served by a federal system. Regional differences, differences in agricultural needs, and economic differences find areas that might be underserved by a centralized, unitary system. New York urban community vs rural agricultural community. Cotton growers vs cattle farmers. Film industry vs steel industry. Urban vs rural is currently the greatest divide in the US. Do you have more in common with someone from British Columbia, or someone from Alabama? Federal vs unitary systems

21. In a geographically smaller nation a unitary system could be more efficient by avoiding duplication of services. • Unitary systems can also promote greater unity within the state by avoiding competition between the states/provinces. • Keep regional conflict to a minimum. • Competing for investment capital in a race to the bottom. State A lowers corporate tax rates to encourage corporations to relocate there. State B lowers them even further. Eventually, states are paying companies to come to their states. (race to the bottom) • http://www.youtube.com/watch?v=oGTEGfEoEJo • 33% of Texans do not have health insurance, 34% of children and 21% of adults live in poverty, has one of the most polluted states, 2nd highest rate of workforce working at or below minimum wage. Unitary system

22. First nine amendments concern the rights of citizens. The 10th Amendment is then a catchall that any powers not considered would need to be conferred upon the federal government, they would not automatically be assumed. Remember that the 10th Amendment also reserves rights for the people. The 10th amendment

23. Public health and safety was abysmal prior to the passage of federal regulations and federal investments in medical research. States showed little inclination to finance healthcare locally. The federal government financed Medicare and Medicaid, but administered it through the states. Rivers burned. Should states regulate the morals of its citizens? Whose morals? Should women be subject to the will of their husbands and poor people forced to fend for themselves against corporations? Police powers

24. The call for state’s rights is most commonly heard when states are attempting to limit the rights of citizens: slavery, segregation, gay rights issues, or access to a safe and legal abortion. Should these issues be legislated by states or do they involve fundamental liberties that should be determined by individuals? Healthcare as a basic human right. States rights

25. An example of the federal government impeding on the rights of citizens can be found in the draft of the Viet Nam War. • Initially the poor, destitute, and criminals: reduced labor force increased economic opportunities here. • Draft instituted to keep it from being a poor man’s fight. College exemptions swelled the enrollment of universities. • College exemptions became insufficient to avoid the war, this was when the student protests gained momentum. • The sons of powerful men could still avoid service through enlisting in the National Guard. IE George W Bush The draft

26. No ex post facto laws…unless you join the military. • The UCMJ Article 134

27. If we look at the timeline of federalism in the textbook, we find that the period of shared growth and economic opportunity was at its greatest during the periods of cooperative federalism and the Great Society. The late 19th century produced corrupt political machines in the cities and states. With greater power to the federal government came reduced corruption and greater faith in the government by the American people. With power being returned to the states, that trend has reversed Evolution of federalism

28. Marbury v. Madison (1803) • Established judicial review • McCulloch v. Maryland (1819) • Impliedpowers of the necessary and proper clause • Supremacy clause • Gibbons v. Ogden (1824) • Broad powers in the regulation of interstate commerce, this became very important during the civil rights movement • Barron v. Baltimore (1833) eminent domain • Bill of rights does not constrain the states, only the federal government. • Subsequent cases have utilized the 14th Amendment to expand the protection of citizens to include states as being constrained by the Bill of Rights. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The due process clause • http://www.law.cornell.edu/lii/get_the_law The marshall court and stare decisis

29. Considered to be one of the worst Supreme Court decisions in history. A very complicated case spanning multiple jurisdictions with the primary question involving whether Scott was a citizen and in what jurisdiction he had the right to sue. Argued twice in two separate terms. In reading the opinions and dissents we find justices discussing what information was presented and what information was not presented. Justices are limited to interpreting what the law says in accordance with the information provided by argument. If a lawyer fails to adequately present the case, it is not up to the justices to make their own case. (This was one of the problems with Citizens United) This case is unusual in that all 9 justices wrote their own opinions. Dred Scott v. sandford(1857)

30. “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.” Chief Justice Taney in the opinion of the Court States can not make individuals US citizens, nor was Dred Scott considered a citizen of Missouri where he sued, therefore, he lacked status as a citizen to bring suit. Court went beyond these questions to declare the Missouri Compromise as unconstitutional as they can find nothing in the Constitution that confers these powers to Congress. Dred Scott v. sandford(1857)

31. The most corruptible and therefore the most corrupt form of revenue generation. Favored enumerated industries at the expense of consumers. An argument to be made for infant industries, but once granted it is difficult to repeal. High tariff rates brought in huge surpluses of revenues, Administration gave away government jobs and contracts to supporters. This was the “spoils system”. Southern Democrats opposed, Northern Republicans favored. Result: higher tariffs with Republican Congresses, lower tariffs with Democratic Congresses. Tariffs as form of taxation

32. Tariffs through the years

33. Southern states disadvantaged by the “Tariff of Abominations” signed by John Quincy Adams, took on the “doctrine of nullification” and secession. The highest tariff rates on the previous graph. South Carolina held convention declaring the tariff as unconstitutional and “null and void” in the state of South Carolina. The doctrine of nullification combined with the Dred Scott case gave justification to the South to secede from the Union. Southern Democrats talked about nullification and secession back then regarding slavery. Southern Republicans talk about nullification and secession today regarding taxes and gun safety. Both rationalize federal government as operating outside of legitimate powers. Nullification and secession

34. From 1862 to 1914 only 3 justices appointed by Democrats. Court finds child labor laws, anti-trust laws, and an income tax (16th Amendment) to be unconstitutional. Lochner Era. Evolution: Democratic party in the time of Jefferson saw states as protecting citizens from the tyranny of a too strong federal government. By the time of Woodrow Wilson, this view had shifted to a strong national government as protecting citizens from the tyranny of corrupt state governments. A shift from negative liberty/freedom to positive liberty/freedom or the transition from classic liberalism to modern liberalism. A pro-business, laissez-faire court

35. New Deal programs had two goals • Bring the country out of recession, and/or • Make sure it doesn’t happen again. • Pro-business, laissez-faire court found New Deal policies to be unconstitutional. • FDR threatened to impeach the current justices and/or to get Congress to pass legislation expanding the Court to 13 – with FDR making the appointments. Court-packing. • New Deal programs in place until they started being dismantled in the 1970s. New Deal era

36. Can find new ways to deal with social issues on a smaller scale. Massachusetts healthcare, education initiatives, SCHIP. • Limitations: • Something that works on a state scale may not work on a national scale. Lax credit card laws • Something that works on a national scale may not work on a state scale. Increased corporate taxes, gas tax. State as laboratory

37. Categorical grants – often require matching funds and have some minimal requirement of implementation. Block grants – fewer restrictions on how the states spend the money. Unfunded mandates - federal directive to states without providing the resources necessary for implementation. Examples: background checks on gun sales, no child left behind. Under Reagan “federal aid to state and local government declined.” Even though federal debt increased dramatically for the first time in 35 years. As federal aid (provided through progressive income taxes) decreases, states make up for the shortfall through other, often regressive taxes. Strings attached

38. Roughly 1946 to 1981 saw relatively balanced budgets with National debt remaining much the same but becoming a smaller percentage of GDP as the economy grew. Shift in economic paradigms from Keynesian to Washington Consensus sees deficits growing unchecked after 1981 with the exceptions of three years of surpluses under Bill Clinton. “The most recent projections, granted their tentativeness, nonetheless make clear that the highly desirable goal of paying off the federal debt is in reach before the end of the decade. This is in marked contrast to the perspective of a year ago when the elimination of the debt did not appear likely until the next decade.” Alan Greenspan, January 25, 2001.

39. Overlapping and contradictory or nothing being done. • Spend money for the general welfare. • States that tax little and spend little on the general welfare often receive more from the federal government. Concurrent powers

41. What does the data show?

42. Studies have shown that welfare programs find greater acceptance in homogeneous communities. Those opposed to social welfare programs have success in playing one race against another. Are there other factors that could account for this data? Whose welfare?

43. Shift the program from a categorical grant to a block grant, breaking the linkage of federal funding and the program. Reduce the dollars provided to the states in block grants. Repeal unfunded mandates How to kill a popular social program

44. If you see the federal government as inherently incompetent or corrupt, wouldn’t the rational response be to eliminate it or make it ineffectual (inconsequential)? If, on the other hand, you believed the government of being able to produce both desirable (good) or undesirable (bad) results, wouldn’t you work to make it work better? The first is an anarchist response. But if you read Hobbes, you recognize that a world without government is beyond suboptimal “no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.” Hobbes declared that life under a tyrant was preferable to life without government. Americans trusted government when it intervened more, yet those who mistrust government call for reduced intervention, not more. Why? Because hating the government and blaming it for everything is easy. Devolution revolution

45. "Government is not a solution to our problem, government is the problem." – Ronald Reagan “I'm not in favor of abolishing the government. I just want to shrink it down to the size where we can drown it in the bathtub”.– Grover Norquist, the no new tax pledge guy “The preservation of freedom requires the elimination of such concentration of power to the fullest possible extent and the dispersal and distribution of whatever power cannot be eliminated – a system of checks and balances. By removing the organization of economic activity from the control of political authority, the market eliminates this source of coercive power. It enables economic strength to be a check to political power rather than a reinforcement.” (emphasis added, Friedman, 1962) Does this remove coercive power or does economic power fill the void left by ineffective political power? What does this do to state autonomy and capacity? Make it ineffectual