Chapter 3-5 PDF: Historical and Structural Contexts of Public Policy Making

The Historical and Structural Contexts of Public Policy Making Chapter at a Glance Overview: The American Constitutional Order The Historical Development of the Constitutional Order Divided Power State Activism National Activism National Standards The End of Big Government? Stability in American Politics and Policy Making Ideological and Political Stability Basic Rules and Norms Fragmentation A Rationale for Stability Case Study: Civil Rights and the Deliberate Pace of Change Summary Key Terms Questions for Discussion, Reﬂection, and Research Additional Reading Overview: The American Constitutional Order The history of American policy making reﬂects considerable long-term change. If George Washington, James Madison, and Thomas Jefferson were to reappear in the United States at the beginning of the twenty-ﬁrst century, they would ﬁnd much that has changed in the size, nature, and scope of government, particularly the federal government, since their day. While they may not be surprised by the territorial extent of the United States (Jefferson, after all, authorized the Louisiana Purchase), they might be amazed by the ease with which we communicate in our country and around the world. At the time of the founding, it took less time for a letter or freight to move from New York to London than it took to reach Pittsburgh—and that London-bound letter or package was cheaper to ship. Today, we can use e-mail, instant messaging, video calls, and other technologies to speak to almost anyone in the world instantly. 58 CHAPTER 3 HISTORICAL AND STRUCTURAL CONTEXTS And if we want to move freight, we have extensive roads (there were few good roads in 1789), fast trains, and faster airplanes that can move a laptop computer from a factory in China to a warehouse in Tennessee in less than twenty-four hours. The history of our society and of public policy making in the United States has been characterized both by remarkable stability and remarkable change. While a strong respect for the rule of law, the separation of powers between branches of government, and our continued commitment to concepts of federalism endure, how these ideas are put into effect has changed a great deal since 1789. These fundamental concepts have endured so that the United States—one of the youngest countries in the world—has one of the oldest written democratic constitutions in the world. Our Constitution is not itself a guarantee of our civil rights and liberties or of political stability. Rather, the maintenance of the basic features of the American constitutional order—federalism, the separation of powers, and the rule of law, among others—relies on important cultural commitments to personal liberty, the sanctity of private property, and various civil rights including voting and expressing one’s opinion in public, organizing civic or interest groups, or holding peaceful protest marches. What all of these features have in common is the idea that the Constitution places limits on the federal government: the people, not the federal government, are sovereign and the states are important political entities. Political power is held by the people, the states matter in the organization of local and national policies, and the political power held by public ofﬁcers—from the president to the school board—“derives from the consent of the governed,” as John Locke argued and as is clearly stated in the Declaration of Independence.1 While most Americans believe in these ideals, there is always room for improvement: some groups—African Americans and women, to name two major examples—were historically denied their full rights of political participation; this sort of discrimination continues today, although much progress has been made toward open participation. And government, or, to be precise, the people who run the government, have sometimes abused their powers. One example of this abuse occurred during World War II, when the federal government moved Japanese Americans from their homes on the West Coast to detention camps based on the unfounded believe that they would be disloyal to the United States. Of course, whether the government uses its power legitimately or abuses it is a political question, often with important constitutional foundations. This nation fought a war over a central constitutional principle: that the Union is perpetually indivisible. In less dramatic, but equally important ways, we expanded the right to vote to those without vast property through constitutional amendment and the creation and enforcement of statutes. The result is that black males, all females, all racial minorities, and citizens eighteen years and older are able to vote. And the meaning of the Constitution has, through the Supreme Court’s major rules, been altered, clariﬁed, and reinterpreted as public demands or democratic principles, which are sometimes not the same thing, are studied and understood. 59 60 CHAPTER 3 Which aspects of the Constitution are unpopular? Why? Source: © Rex May Baloo. Reproduction rights obtainable from www.CartoonStock.com. Contrast the constitutional order of the United States (that is, the whole of our cultural, legal, and political commitments to the ideas contained within the Constitution) with the language contained in the constitutions of various other countries that are, as Americans understand the term, undemocratic. The constitution of the People’s Republic of China provides for freedom of speech, press, association, and assembly in Article 35. Article 46 of the last Soviet constitution provided for something like press freedoms within certain cultural contexts, but the right of a free press is not explicit. Article 29 of the Russian Federation’s current constitution is much clearer with respect to press freedoms, but whether these are real freedoms is a live question; journalists who report on sensitive issues are often suppressed and some have lost their lives while reporting on delicate matters. And Article 24 of the constitution of Iran states that “Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be speciﬁed by law.” Restrictions on press freedoms were signiﬁcant after the major protests following the June 2009 Iranian presidential elections. Lest one believe that I am choosing selectively, consider a country very much like our own. Canada’s Charter of Rights and Freedoms states that The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justiﬁed in a free and democratic society. In the United States, we do not explicitly state that our rights are subject to reasonable limits, although in practice they are. But our clear and absolute statement of ﬁrst HISTORICAL AND STRUCTURAL CONTEXTS 61 amendment rights—(Congress shall make no law . . .) means that we face difﬁcult choices in our political lives. For example, should self-declared Nazis be allowed to spread Holocaust denial literature? In the United States they generally can, but in Canada and Germany it is illegal. These countries’ free speech rights allow for limits on personal liberty when justiﬁed to maintain the democratic order.2 The public policy implications of this discussion are clear: the United States places a very high value on individual liberties, particularly on liberties related to political activity. And, more broadly, our constitutional order has remained remarkably stable for over 200 years. But the changes that have occurred during this time have been transformative, and, in many ways, while the United States has the same structure and philosophical foundation it had in 1789, in many other ways the nation has changed. It is as if the original builders created a very sturdy foundation and a good solid house and many additions have been made, making the structure only partially recognizable to its original architects. The Historical Development of the Constitutional Order One of the major features of our constitutional order is policy restraint—the idea that policy making should be deliberative. Indeed, while Americans commonly complain about the slow pace of action in the U.S. Congress and in other institutions, it is important to note that the slow (or, to some people, careful and deliberate) pace of policy making is intentionally built into the Constitution and the rules and practices of the House and Senate. Federalism also makes sweeping national change more difﬁcult than it would be in a nonfederal system. In a signiﬁcant study of why American politics and policy making is more constrained than expansive, Robertson and Judd lay out a history of public policy characterized by what they call “policy restraint.” This history is divided into four eras: a period of divided power, an era of state activism, an era of national activism, and, ﬁnally, an era of national standards. In all these eras, some degree of policy restraint prevented government from taking action on issues when, in many cases, such action may have been warranted either by public demands, demonstrated needs and unfairness, or a combination of these factors. Policy restraint in housing and health care as well as other areas has distinguished the United States from other industrialized states that have more actively pursued policies that provide more services for citizens and involve greater government action. Thus one can argue that the features of our constitutional system that promote restraint—the two houses of Congress, the separation of powers, and federalism—prevent government from acting without carefully considering the costs and beneﬁts of new policies. Americans generally consider policy restraint to be a good thing, reﬂecting the framers’ concerns about sudden shifts in policy being driven by the immediate “passions” of the times, rather than by more sober deliberation that addresses long-term problems. At the same time, it is also true that the features that promote stability and separation of powers. The constitutional division of powers between the legislative, executive, and judicial branches of the government. federalism. A system of government in which power is shared between a central or federal government and other governments, such as states or provinces. Key federal systems in the world include the governments of the United States, Canada, and Germany. 62 CHAPTER 3 deliberation also promote stasis: it took the United States seventy-ﬁve years and one civil war to determine whether slavery should be allowed in the republic (and originally, the question was just whether or not to contain slavery in the South, rather than its outright abolition in the whole country). In another example, the United States started with a central bank, abolished it, and established various other central banking entities before creating a central banking system under the Federal Reserve Act of 1913, over 100 years after the demise of the First Bank of the United States. And many people argue that the failure of the United States to create a system of national health insurance puts the nation “behind” other industrialized states and even some less-developed nations such as Cuba and South Africa that, by some measures, deliver more or better health care. The truth of these arguments and their implicit solutions are all open to debate. For now, the question to bear in mind as you read this—and as you think about policy making in general—is whether the beneﬁts of policy restraint are greater than the costs of such restraint, particularly when rapid and decisive action seems to be necessary. Of course, even the need for rapid response to an emerging problem is a political question that is often debated. The expansion of rights and broadening of our understanding of the Constitution suggests that the interpretation of it has been unstable since the 1790s. The Constitution has been amended several times, changing the meaning of key passages. And our understanding of what the Constitution means and what it demands of our government has also changed a great deal. These changes in the interpretation of the Constitution can be said to have occurred in well-deﬁned eras of the policy history of the United States. A particularly useful summary of this history is provided by David Robertson and Dennis Judd3 and is reviewed in this chapter. We then turn to a discussion of the features that make American politics quite stable compared with the rest of the world while allowing for long-term policy change. Divided Power Articles of Confederation. The ﬁrst “constitution,” of a sort, of the United States, under which the states formed a very weak federal union, with little power to tax or to exert power to regulate the economy, or to react to rebellions. In the ﬁrst era of our nation’s policy history, the era of “divided policy making power” (1787–1870), the major task facing the nation was to divide policy-making power between the states and the national government and to ﬁgure out how the federal government and states would work both together and independently of each other. After the United States won its independence from Great Britain, many Americans thought that the newly free states would experience a period of peacetime prosperity; instead, an economic depression ensued. The economic crisis was worsened by the weakness of the national government under the Articles of Confederation. The national government could barely raise taxes or armies, and often too few states sent representatives to the seat of government to discuss policies. In the states, the HISTORICAL AND STRUCTURAL CONTEXTS farming interests sought loose money policies to alleviate the damage done by deﬂation; this meant the printing of paper money. The event that most clearly illustrated the shortcomings of the national government was Shays’s Rebellion. Daniel Shays was a farmer in western Massachusetts who led a group of about a thousand men to intimidate the courts to delay foreclosures and debt collections; his band also sought to attack a federal arsenal.4 While Massachusetts responded by providing relief for debtors, the event awakened other states to their need for strong national action to provide protection against insurrection. The Constitution, ﬁnalized in 1787 and ratiﬁed in 1789, placed limits on the scope of the federal government, but the resulting federal government was still considerably more powerful than the skeleton government established under the Articles of Confederation. In light of economic instability and some incidents of civil disorder, which seemed to stem from federal weakness and the inability to persuade or compel states to act in their joint interests, the framers drafted provisions to protect property and the political standing of the moneyed classes against popular uprisings. Robertson and Judd call these features “structural impediments to radical policy.” The historian Charles Beard went a bit further, arguing that the Constitution was a counterrevolutionary document that served to protect their economic interests in the face of populist sentiments.5 Whether or not you agree with Beard’s thesis, there are many “structural impediments to radical policy” in the Constitution. The federal structure itself and the division of power among the three branches of government impede rapid and radical policy change. But the most important feature of the early Constitution was its relatively limited grant of power to the federal government and the reservation, under the Tenth Amendment, of a great deal of power to the states. The result is that “one of the enduring consequences of the American federal structure is that policy conﬂicts tend to turn as much on jurisdictional questions as on the merits of policy alternatives” (Robertson and Judd, p. 31). In other words, many debates are as much over which level of government should do something as whether something should be done. Because the federal government assumed regulation of interstate commerce and because economic growth was considered vital to the young nation’s prospects, Congress’s role was largely focused on promoting commerce. Congress, however, had many other powers, as shown in Table 3.1, which reproduces Article I, Section 8, of the Constitution, listing all the things Congress has the power to do. Some of these clauses may seem dated (such as the regulation of commerce with the Indian tribes in Clause 3), or appear obscure (such as Clause 17, which declares federal authority to establish a capital at what was to become known as Washington in the District of Columbia), but most of these powers remain as current and important today as they were more than 200 years ago. The powers granted to Congress fall into two broad and overlapping categories: the management of national responsibilities, such as defense and immigration policy, 63 Shays’s rebellion. The name given to the uprising of poor farmers in Massachusetts who challenged civil authority in the face of growing debt, taxes, and the threat of going to debtor’s prison. The uprising was one of the reasons for calling the Constitutional Convention in 1787. 64 CHAPTER 3 Table 3.1 Article 1, Section 8 of the Constitution Perhaps the most important passage of the Constitution, particularly for students of public policy, is Article 1, 3ECTION )F hPUBLIC POLICYv IS hWHAT THE GOVERNMENT DOES OR CHOOSES NOT TO DO v IT IS WORTHWHILE TO REVIEW WHAT THE founders had in mind: Clause 1: 4HE #ONGRESS SHALL HAVE 0OWER 4O LAY AND COLLECT 4AXES $UTIES )MPOSTS AND %XCISES TO PAY THE Debts and provide for the common Defense and general Welfare of the United States; but all Duties, )MPOSTS AND %XCISES SHALL BE UNIFORM THROUGHOUT THE 5NITED 3TATES Clause 2: To borrow Money on the credit of the United States; Clause 3: 4O REGULATE #OMMERCE WITH FOREIGN .ATIONS AND AMONG THE SEVERAL 3TATES AND WITH THE )NDIAN Tribes; Clause 4: 4O ESTABLISH AN UNIFORM 2ULE OF .ATURALIZATION AND UNIFORM ,AWS ON THE SUBJECT OF "ANKRUPTCIES throughout the United States; Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and ﬁx the Standard of Weights and Measures; Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; Clause 7: 4O ESTABLISH 0OST /FlCES AND POST 2OADS Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and )NVENTORS THE EXCLUSIVE 2IGHT TO THEIR RESPECTIVE 7RITINGS AND $ISCOVERIES Clause 9: To constitute Tribunals inferior to the supreme Court; #LAUSE To deﬁne and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; Clause 11: 4O DECLARE 7AR GRANT ,ETTERS OF -ARQUE AND 2EPRISAL AND MAKE 2ULES CONCERNING #APTURES ON Land and Water; Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; Clause 13: To provide and maintain a Navy; Clause 14: 4O MAKE 2ULES FOR THE 'OVERNMENT AND 2EGULATION OF THE LAND AND NAVAL &ORCES Clause 15: 4O PROVIDE FOR CALLING FORTH THE -ILITIA TO EXECUTE THE ,AWS OF THE 5NION SUPPRESS )NSURRECTIONS AND REPEL )NVASIONS Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Ofﬁcers, and the Authority of training the Militia according to the discipline prescribed by Congress; Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles SQUARE AS MAY BY #ESSION OF PARTICULAR 3TATES AND THE !CCEPTANCE OF #ONGRESS BECOME THE 3EAT of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, -AGAZINES !RSENALS DOCK 9ARDS AND OTHER NEEDFUL "UILDINGS!ND Clause 18: 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. HISTORICAL AND STRUCTURAL CONTEXTS and commercial responsibilities, such as coining money, setting bankruptcy rules, and building roads and post ofﬁces. The latter function was particularly important, since federal efforts to encourage communication and transportation established links between states that served to forge a new nation from separate and often distant states. Even with these features in the Constitution, this forging of a new nation took some time, and for a while states squabbled over, for example, the right to regulate interstate commerce. The classic example of this ﬁght is found in the case of Gibbons v. Ogden,6 in which the state of New York attempted to require the operator of a steamboat that crossed the Hudson River from New Jersey to New York to obtain a New York State permit. The Supreme Court held that such a regulation was unconstitutional under the commerce clause of the Constitution. With states prevented from erecting barriers to trade between states, a national economy soon ﬂourished. The powers of Congress are broader in practice than those listed in Article I, Section 8, because Clause 18, also called the “elastic clause,” grants Congress power to do things not explicitly listed in Article 1, Section 8, to advance the goals outlined in the Constitution. For instance, Congress in this period funded canal and road building for much more general purposes than simply moving mail. Congress, in establishing and funding the army, also funded the process of westward expansion by providing military protection to the new settlers of the West. From the perspective of the average citizen the federal government was not the most important ofﬁcial participant in policy making in the early days of the United States. The federal government was a distant entity; most citizens’ contact with the federal government was limited to the post ofﬁce. The Constitution’s structure and the founders’ understanding of the role of the new federal government help explain this, but other factors are equally as important, including the mostly rural nature of the nation; its sparse and generally homogeneous voting population (of course, blacks and women were not allowed to vote, and some places only allowed property owners to vote), a political philosophy based on limited government, individual liberty, and the protection of private property rights; and, in particular, the fact that the Industrial Revolution had not yet taken hold in the United States. Indeed, Thomas Jefferson was the strongest proponent of a largely rural, agricultural America populated by a virtuous class of farmers, an ideal that stood in sharp contrast to Alexander Hamilton’s vision of a nation based on industry and commerce. Hamilton’s vision ultimately won out over Jefferson’s and with growing industry and national systems of production and distribution of manufactured and agricultural goods came greater demands on government to create policy that would foster greater uniformity throughout what was to become a great industrial nation. However, until the Federal Reserve Bank was established in 1913, the full expression of Hamilton’s vision was incomplete, in large part due to the important features of policy restraint in politics and in the constitutional order. The broader point is this: change can occur, but the full expression of an idea can take years to be adopted and implemented. 65 commerce clause. Article I, section 8, clause 3 of the Constitution, which gives the Congress (and, by extension, the federal government) the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” elastic clause. Article I, Section 38, Clause 18 of the Constitution, which allows Congress “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Ofﬁcer thereof,” which appears to give Congress expansive powers. Industrial Revolution. The period in Europe and in the United States when industry grew rapidly due to technical innovations in production; people moved to cities and worked for wages; and a series of major social and political changes occurred, such as the growth of business power and the establishment of labor unions. 66 CHAPTER 3 State Activism Civil War Amendments. The thirteenth, fourteenth, and ﬁfteenth amendments to the Constitution that were enacted right after the U.S. Civil War. The Thirteenth Amendment banned slavery and the Fifteenth Amendment provided the vote to all men regardless of race. The Fourteenth Amendment provided new due process of law and equal protection guarantees for citizens of each state, not just citizens of the United States in their relationships with the national government. The next era—state activism—spans the period from the 1870s to 1933. This was a period of great change and turmoil as the nation shifted from a predominantly rural, farming-based economy to a modern urban, industrial economy, powered by both native and immigrant labor. This urbanization led to great wealth for some people and great poverty for others, particularly those living in the urban ethnic ghettoes as well as in the “company towns” set up and run by large mining and industrial monopolies. The presence of disease and crime in these newly industrialized cities, mass popular uprisings in the cities, such as the Haymarket Riot in Chicago in 1886, severe labor strife, such as the Pullman Strike of 1893–94, and the ongoing problem of large industrial disasters prompted the states to seek solutions to some of the most overt ills wrought by the rapid industrialization and social change of this era. Many states sought to regulate industry in general and to rein in the excessive power exercised by many of the largest industrial monopolies. Yet the fact that these monopolies existed across state boundaries made regulation by individual states difﬁcult, if not impossible. Because these ﬁrms were engaged in interstate commerce, many people felt that the federal government needed to step in and regulate business under the commerce clause of the Constitution. As the Industrial Revolution continued, Congress reacted to the problems of railroad rate setting by establishing the Interstate Commerce Commission (which was dissolved by Congress in 1995).7 And in 1890, Congress passed the Sherman Antitrust Act, which, combined with later efforts by Theodore Roosevelt and others, led to the breakup of the “trusts,” the term used then for monopolies or near monopolies, most notably the Standard Oil Trust, which was the parent ﬁrm of what we now know as Exxon, Mobil, Chevron, and others. Exxon and Mobil have since merged into ExxonMobil, bringing together two old members of the Standard Oil Trust, while Chevron merged with Texaco, a ﬁrm outside the original oil trust. On the social front, the federal government began to tackle the problems of integrating former slaves into the political community—problems that vexed those who wanted to see former slaves rapidly enjoy the fruits of equal citizenship with whites, and those who wanted blacks to remain servile and uninvolved in deciding their own fate as well as that of their nation. The primary step in addressing these problems was the enforcement of the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In addition, Congress passed several comprehensive civil rights laws, including the 1866 and 1875 Civil Rights Acts, intended to grant basic civil rights to African American men, such as voting, property rights, and the right to equal public accommodations, such as schools or railroad cars. For a short period, these acts, enforced by federal agencies such as the Freedman’s Bureau and by federal troops occupying much of the South during Reconstruction, created a political system open to the participation of African Americans. But the election of Rutherford Hayes in 1876, after a hotly HISTORICAL AND STRUCTURAL CONTEXTS contested race, ended Reconstruction, and with it any concerted federal effort to enforce civil rights laws. The South was thereby free to engage in a policy of segregation laws known as Jim Crow laws. In keeping with this change in federal priorities and national politics, the Supreme Court, in Plessy v. Ferguson (163 U.S. 537, 1896), effectively returned the power over civil rights and liberties to the states to do whatever they pleased with such issues. This decision allowed the southern states to pursue policies of racial segregation in all aspects of social, political, and economic life. Racist and segregationist policies and practices were also evident outside the South, and some of the more difﬁcult political battles against racism during the civil rights movement that started in the 1940s had to be fought in the North and West (see the case study in this chapter). Similar to the failure of the federal government to ensure civil rights in this era was the federal government’s weakness in its efforts to regulate industry. Corporate power was protected from government interference by a conservative judiciary that interpreted constitutional law to protect business from even minimal regulation. At the same time, starting in about 1900, public demands for federal and state action focused on industrial safety and labor relations. Federal policy in this area can be deﬁned as purposefully noninterventionist. The federal government was supportive of laissez-faire economics and identiﬁed the role of the government as allowing states and individuals to conduct their business without government intrusion. For example, the Supreme Court, in Lochner v. New York,8 ruled that the cities and states could not regulate the wages and hours of workers (in this case, bakers) because such regulation interfered with the workers’ right to freely contract their labor with their employers. This decision sparked serious controversy, because the workers were not very free to negotiate the terms of their labor and were often compelled to work very long hours or risk losing their jobs. The Lochner doctrine ignored the obvious power disparities between workers and employers, and put a serious damper on workplace regulation for the next three decades. Thus, the federal courts, under the Lochner doctrine, and Congress, often inﬂuenced by business interests, failed to enact policies that would substantially limit industry’s freedom of action, even when this freedom caused hardship and upheaval. Effective regulation of wages and hours did not extend fully to most workers until 1936, when the Supreme Court upheld a minimum wage law in Washington State.9 Even the most basic child labor laws were often struck down under the Lochner logic, as the courts became the ultimate arbiter of what constitutes a reasonable regulation of industry. In most cases, state actions were found to be “unreasonable,” leaving business relatively unfettered. Still, this period was not completely without government action to address the needs of a growing national, industrial economy. Congress established the Federal Reserve System in 1913, establishing the central bank that is vital to a modern economy. In 1914 Congress further regulated monopolies by adding the Clayton Act to the Sherman Act. While both the Sherman and Clayton acts were quite vague 67 Jim Crow laws. The laws primarily enforced in the South that discriminated against African Americans with regard to housing, jobs, the use of public accommodations, and other civil rights. Some laws were directly discriminatory, while others encouraged racial discrimination in private establishments, such as restaurants and hotels. Plessy v. Ferguson (1896). The Supreme Court case that made it Constitutional to create “separate but equal” accommodations for blacks and whites; this decision was the underpinning for the racist Jim Crow laws, enforced primarily in the South. Laissez-faire economics. A system of economic regulation in which government leaves business totally, or almost totally, unfettered. This term has negative connotations, referring as it does to the freewheeling and sometimes abusive business practices of the late nineteenth century. 68 Lochner v. New York. Supreme Court case that held that state work hour laws were unconstitutional restraints on the right of workers to enter into labor contracts with their employers. The court relied on a concept called substantive due process. This decision made regulation of wages and hours very difﬁcult for the federal government and the states. The decision was overturned in 1937. Barron v. Baltimore (1832). This decision held that people in the United States were both citizens of their states and of the nation, and that they therefore had to seek relief under their state constitutions, not the U.S. Constitution, if they felt their rights had been violated. CHAPTER 3 and required additional legislation to clarify their meaning, they laid the groundwork for modern antitrust law. In response to muckraking journalists such as Upton Sinclair, Congress also passed the Pure Food and Drug Act. This act was intended to remedy the severe problems in food packaging revealed by Sinclair in his novel The Jungle, about a working-class community and its meatpacking plant, where insects, rodents, and other ﬁlth were introduced into canned meat. But even this act was passed with the active support of the major food-processing ﬁrms, which sought such laws to instill public faith in their products; its fate without their support might have been tenuous. Drugs were regulated when it became clear that many popular remedies were often useless or, sometimes, more harmful than beneﬁcial. However, the Federal Reserve was still dominated by private banking interests and Congress signiﬁcantly weakened Woodrow Wilson’s proposed antitrust legislation. In sum, the federal and state governments were not completely inactive between 1905 and 1937, but many of their activities were constrained by an economically and socially conservative federal judiciary that blocked government initiatives while containing the backlash against capitalism. Still, we must keep in mind that the states were powerful political entities in the state activism period, even more powerful than today, in most cases. Before the Civil War, the federal Constitution only restricted federal action against citizens, while state constitutions governed the relationships between individuals and states. In other words, under the notion of dual citizenship, one was a citizen of the United States and of the state in which one resided. Because the federal government didn’t have much to do with the daily lives of Americans, most people didn’t see the federal government as very important, and many promising political leaders preferred to serve in their state legislatures or courts, or as governors, rather than as members of Congress or the federal courts. State governments mattered more to people’s daily lives, and state ofﬁces held higher prestige because, under our constitutional system, most policy was made at the state level. Indeed, most people considered themselves New Yorkers, Ohioans, or Kentuckians as well as Americans. The concept of dual citizenship is present in Barron v. Baltimore.10 John Barron owned a successful business: a wharf in Baltimore harbor. While making street and drainage improvements, the city of Baltimore caused changes to the ﬂow of streams that caused the water to become shallower, thereby making Mr. Barron’s wharf less useful for shipping. Mr. Barron sued in the Maryland courts, claiming that his property had been illegally taken, without proper compensation, by the city of Baltimore, which was created by the state of Maryland. Mr. Barron repeatedly lost in state court, and appealed to the U.S. Supreme Court, arguing that the state was bound to respect his Fifth Amendment right under the federal constitution to be compensated when his property was taken from him. But the court disagreed, stating that the federal Bill of Rights did not apply to the actions of the states. Thus, if a state abridged a person’s rights of free speech, or assembly, or due process of law, or property ownership, that person had to appeal to the state courts, not the HISTORICAL AND STRUCTURAL CONTEXTS federal courts, for matters deemed to be solely state matters. One could bring a case in federal court if one’s federal rights were violated by the federal government. It wasn’t until the ratiﬁcation of the Fourteenth Amendment, which says that “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,” was an avenue opened for the application of the national standard of the Bill of Rights against the states. That avenue was the “equal protection clause,” one of the most cited parts of the Constitution. But the idea that there are fundamental rights that states and the federal government must respect didn’t begin to take hold until the 1890s and gained momentum in the 1920s and 1930s. Even so, the incorporation doctrine—the idea of setting the national constitution’s rights and protections as the minimum standard for the states—does not mean that every provision of the Bill of Rights is “incorporated against” the states. In particular, the courts have never fully incorporated the Second or Seventh Amendments against the states; the Second Amendment is currently subject to litigation on the question. This is a fascinating aspect of our constitutional history, but it’s also an important feature of policy making, because the emergence of the incorporation doctrine plus major changes to occur in the 1930s led to historic levels of national power. 69 incorporation doctrine. The idea that the Fourteenth Amendment’s Due process clause “incorporates” all the provisions of the Constitution’s Bill of Rights against the states, meaning that states cannot violate the federal standard in these matters. National Activism The third era—national activism—ran from 1933 to 1961, and was triggered by the demands placed on the national government by the Great Depression. When President Franklin Delano Roosevelt was inaugurated in 1933, the Lochner doctrine continued to dominate thinking on the Supreme Court. The starkest example of the constraints on federal and state action created by the letter and spirit of Lochner is seen in the early years of President’s Roosevelt’s New Deal programs. Roosevelt called Congress into session and presented sweeping proposals to end the Depression and to maintain conﬁdence in business, industry, and ﬁnance. These ideas, most of which became law, included greater regulation of banking and securities, the National Industrial Recovery Act (NIRA), and the Civilian Conservation Corps. The conservative Supreme Court, operating under the Lochner doctrine, struck down the NIRA.11 The Supreme Court’s restraining inﬂuence on policy was so great that, after his 1936 reelection, President Roosevelt attempted to break this constraint by proposing a new way of organizing the Supreme Court. Arguing that old age was making it difﬁcult for some justices to do their jobs well, Roosevelt proposed to add one justice to the Court for every justice who was age seventy or older. This would have resulted in a ﬁfteen-member court at the time, dominated by Roosevelt appointees, who presumably would be more favorable to the president’s plans. People across New Deal. The program of policy changes and reforms associated with President Franklin D. Roosevelt’s administration that intended to alleviate the Great Depression. 70 national security. The collection of policies, practices, and ideas that seek to protect the United States from foreign military or terrorist threats. CHAPTER 3 the political spectrum reacted negatively to Roosevelt’s “court-packing” plan, and Roosevelt’s enthusiasm for the plan was further diminished after two justices seemed to change their philosophy in favor of New Deal legislation, in what became known as the “switch in time that saved nine.” As it turned out, a number of justices did retire, in part due to their age, during the Roosevelt administration, so that by 1940 the Supreme Court, consisting mostly of Roosevelt’s appointees, became more amenable to the president’s program. The most important outcome of the New Deal history is its promotion of active federal involvement in national policy making. By 1937 the New Deal had created a vast system of governmental regulatory bodies, including but not limited to the Federal Communications Commission (FCC), the Civil Aeronautics Administration (later the Civil Aeronautics Board, or CAB), the Securities and Exchange Commission (SEC), the Federal Deposit Insurance Corporation (FDIC), and the Federal Home Administration (FHA). The government entered businesses that were traditionally private, such as power generation, with the creation of the Tennessee Valley Authority (TVA) and the Bonneville Power Authority (BPA). Indeed, the TVA had a broader goal of fostering economic development in the once-isolated Tennessee Valley, while the BPA provided cheap electricity to the factories that reﬁned aluminum, which was a key input in the West Coast’s aviation industry during and after World War II. These agencies continued to inﬂuence American policy and politics after the New Deal and World War II. World War II–era programs further enhanced the inﬂuence of the federal government. The GI Bill, which funded the postwar education of many servicemen and servicewomen; the FHA, which made mortgage loans easier to obtain; and the FDIC, which guaranteed the safety of bank deposits, laid the groundwork for the postwar economic boom. These and other programs, such as Social Security, became so entrenched in the national psyche that by the 1950s most Republicans realized that they could not resist their popularity and that efforts to repeal them would be unpopular and futile. The result was a bipartisan consensus on the political sanctity of Social Security that persists to this day, even as controversies over how the system is funded recur. After World War II, U.S. foreign and defense policy establishments grew signiﬁcantly, setting the tone for U.S. postwar foreign policy. The term national security ﬁrst came into common use after the war, and the defense establishment of the United States was substantially reorganized in 1947. The North Atlantic Treaty Organization, or NATO, was formed in 1949 as an alliance intended to contain the threat of Soviet expansionism. Fears of communist subversion led to ethically questionable congressional actions to root out subversion, such as the creation of the House Un-American Activities Committee (HUAC) and the crusade against communism led by Senator Joseph McCarthy (R-Wisconsin). At the same time, the expansion of the federal role in defense policy slowed under the Eisenhower administration because of Americans’ desire for a somewhat slower pace of change. Still, the seeds HISTORICAL AND STRUCTURAL CONTEXTS 71 of important federal initiatives, such as the space program and the construction of the Interstate Highway System, were planted in the late 1950s. National Standards The ﬁnal period in Robertson and Judd’s formulation, the era of “national standards,” runs from 1961 to the present, although, as I argue later, there was what appeared to be an era of “the end of big government” that started in about 1980. The 1960s were a fertile period for domestic policy making, akin to the New Deal era in the 1930s. Under President Lyndon Johnson’s Great Society program, federal efforts to address policy problems again accelerated. Great Society programs addressed poverty, racial discrimination, educational problems, barriers to access to health care for the poor and elderly, mass transportation, urban renewal, environmental issues, and myriad other problems. It is not a coincidence that the 1960s also saw the birth of the scientiﬁc study of public policy and public problems, as researchers asked, ﬁrst, what are the problems; second, what causes the problems; and third, do the policies we have to address the problems work? This scientiﬁc study, in large part, because the federal government was starting to set national standards for the states and other actors to follow in the pursuit of policy goals. At the same time, the states’ capacity to make and enforce policy grew rapidly, particularly in leading states such as New York and California. Much of the research on these new national programs revealed mixed results. Efforts to foster a renewal of the urban core were not widely successful,12 while the Elementary and Secondary Education Act (ESEA), and the Head Start program were considered moderately successful successes by some, while others found mixed results.13 Richard Nixon’s election in 1968 was viewed by some as a return to more conservative federal policy making; indeed, many of Nixon’s proposals and programs were intended to cut back federal activities in various problem areas. The Nixon administration pursued a policy of “New Federalism,” in which discretion was returned to the states, and federal block grant programs were developed to replace the highly descriptive, top-down policies that characterized many Great Society programs.14 But the Nixon administration was not afraid to use federal power and policy making to address national programs. The Environmental Protection Agency (EPA) was established and the National Environmental Policy Act (NEPA) was passed under the Nixon administration, although the Trans-Alaska Pipeline, built to transport oil from Alaska’s North Slope to the ice-free port of Valdez, was opposed by many environmentalists. The pipeline project was approved and explicitly exempted from NEPA requirements. Nixon attempted to stem inﬂation through wage and price freezes imposed at the federal level, but the administration’s New Federalism and block grants programs were attempts to move power from the federal level to the state level. From a policy-making perspective, the Nixon years were also important because Great Society. The package of domestic programs advanced by President Lyndon Johnson to alleviate poverty, improve education, and foster civil rights during the 1960s. 72 CHAPTER 3 this period witnessed major changes and reforms in Congress. President Nixon often angered Congress by not spending funds that were appropriated for particular uses, which is called “impoundment,” and the Congress prohibited the practice while reforming the budget process in the 1974 Budget and Impoundment Act. The president’s ability to commit troops to overseas actions was somewhat constrained by the 1973 War Powers Resolution. And the power and prestige of the executive branch in general were dulled by the Watergate scandal and Congress’s investigations into the activities of the Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA). From a policy perspective, the important change here was the reassertion of congressional power in its relationship with the presidency. The End of Big Government? Perhaps the most important post–New Deal shift in government and attitudes toward policy was the 1980 election of President Ronald Reagan. Because he ran on a consistent program of cutting “big government,” his perceived mandate was to do just that. In some ways he aggressively did so, particularly in social welfare programs. His mandate to cut big government did not run, as it turned out, to the defense department. Nor were his policies strictly designed to reduce the federal budget deﬁcit, a ﬁgure often used by small-government activists to highlight the problems with a large federal establishment. But it is important to remember that the move to shrink government and decentralize it was also undertaken by President Nixon and President Jimmy Carter. Carter foreshadowed his desire to make the federal government smaller and more efﬁcient in his inauguration speech, in which he declared, “We have learned that ‘more’ is not necessarily ‘better,’ that even our great nation has its recognized limits, and that we can neither answer all questions nor solve all problems. We cannot afford to do everything, nor can we afford to lack boldness as we meet the future.” And in his 1979 State of the Union speech, after listing the challenges faced by the nation, Carter said, “At home, we are recognizing ever more clearly that government alone cannot solve these problems.” Later in his speech, Carter, in language sounding very familiar to that of Reagan supporters, claimed: We must begin to scrutinize the overall effect of regulation in our economy. Through deregulation of the airline industry we’ve increased proﬁts, cut prices for all Americans, and begun—for one of the few times in the history of our nation—to actually dismantle a major federal bureaucracy. This year we must begin the effort to reform our regulatory processes for the railroad, bus, and the trucking industries. America has the greatest economic system in the world. Let’s reduce government interference and give it a chance to work. The deregulation of the airline industry is perhaps the most-remembered regulatory action taken by the Carter administration; it opened airlines to price competi- HISTORICAL AND STRUCTURAL CONTEXTS tion and allowed people of modest means to ﬂy, although some have argued that deregulation was not a complete success.15 President Carter’s efforts to shrink the federal government were similar, although perhaps not as aggressive as Reagan’s efforts. Reagan’s rhetoric was also much more antigovernment than Carter’s. In his ﬁrst inaugural address, Reagan stated that, “Government is not the solution to our problem; government is the problem.” But by the mid-1980s, an aroused Congress was tempering the Reagan program, and Reagan suffered a major setback in his prestige during the so-called Iran-Contra scandal. Before then, however, Reagan had substantially increased American military spending, which signaled a return to American willingness to project military power overseas, in places such as Grenada, Panama, and the Middle East. This tendency continued in the Bush and Clinton administrations, which used the military in Iraq, Afghanistan, Somalia, BosniaHerzegovina, and Kosovo, with varying degrees of real or perceived success. The post-Nixon legacy of distrust in government—a sentiment that presidents Carter and Reagan both appealed to, although on different ideological grounds— continues to inﬂuence policy making and government action. Indeed, a 2008 Rasmussen poll found that “59% agree with Ronald Reagan—government is the problem.”16 The “Reagan Revolution” may have laid the groundwork for the Republican takeover of the Congress in 1994, and its basic ideological underpinnings were restored to national policy when George W. Bush became president in 2001. More signiﬁcantly, the rhetoric and the actual policies created by Reagan spawned an America in which Bill Clinton could remark in his 1996 State of the Union speech, driven possibly by his party’s stinging defeat in the 1994 congressional elections and his failure to pass major health care reform, that “the era of big government is over.” This sentiment may have changed during the Clinton administration when the federal budget deﬁcit became a budget surplus, as discussed in chapter 2. Still, we continue to live in an era in which the federal government is mistrusted and in which the state governments, while for the most part not able to develop vast new programs, are perceived as better positioned to address local needs and appear to be more responsive to citizens’ needs, even as they come under signiﬁcant ﬁscal stress.17 The drive for smaller government continued in earnest through both George W. Bush administrations. The major legislative achievement of the Bush administration before the September 11, 2001 terrorist attacks was a signiﬁcant and controversial tax cut. This tax cut, coupled with the economic downturn that began before the September 11 attacks (but that was likely accelerated by the attack) and the costs of ﬁghting the war in Afghanistan and Iraq, caused an increase in the federal budget deﬁcit. It did not, however, lead to a major increase in the size of the deﬁcit compared with the gross domestic product, as discussed in chapter 2. The idea of smaller, less expansive, and therefore less intrusive government enjoys broad popular support. However, there is no discernible trend toward “smaller government.” Rather, administrations may claim to pursue smaller government 73 74 CHAPTER 3 except in domains where they deem it important. The September 11 terrorist attacks introduced the term “homeland security” to the national lexicon, and greatly increased federal government power in the broad range of activities that pass for “homeland security,” so much so that there is now something of a retreat from the most extreme expressions of this power. Weeks after September 11, Congress enacted the USA Patriot Act, which gives the government greater powers to investigate terrorism and other crimes, at some potential cost to individual rights and liberties. And while new government departments are often anathema to small-government proponents, the Bush administration created an entirely new department, the Department of Homeland Security, which handles a relatively small part of the homeland security issue. To be fair, it is important to remember that it was congressional Democrats—in particular, Senator Joseph Lieberman (then D-CT)—who pressured the administration to create this department. It is hard to say whether the department constitutes growth in government, or merely a reorganization of existing government programs and agencies. But regardless of ideological commitments to “smaller government,” government will grow if policy makers perceive the need for greater government activity, such as in counterterrorism. The election of Barack Obama has thrown the small-government idea into even greater doubt. And, if nothing else, there’s apparently no conﬂict between the ideas of “national standards” and “smaller government,” at least rhetorically. For example, the controversial No Child Left Behind act enacted during the Bush administration set national standards for school performance, to which education aid dollars are attached. And, at least in recent years, government spending, if not government itself, has grown substantially. Even before President Obama took ofﬁce, the Bush administration had committed extraordinary sums of money to prop up the banking and ﬁnancial system after the collapse of the Lehman Brothers investment ﬁrm—a controversial but certainly understandable intervention, considering how banking and investment institutions in the United States are at the center of international ﬁnance. These policies have continued on about the same course under the Obama administration, which has also promoted programs to remove old “clunker” cars from the roads, to provide relief for people with major mortgage problems, to invest in high-speed passenger trains, to promote alternative energy, and so on. This is an even more activist government than that of the Clinton administration, and while, at this writing, President Obama’s approval ratings are declining, as often happens shortly after an election, it is too soon to tell whether a more expansive federal role will prove popular or a movement to shrink government will take hold. Indeed, President Obama’s administration has noted that the short-term stimulus of the various federal programs was likely unsustainable, and that as the economy recovered substantial budget cuts would need to be made to reduce the ballooning federal budget deﬁcit. HISTORICAL AND STRUCTURAL CONTEXTS Big government or small, ambitious or cautious, policy making in America reﬂects the ﬂexibility and stability of our constitutional system. Without this ﬂexibility, the constitutional order itself might not be able to endure; the Civil War demonstrated the ability of the Constitution to bend but not break in the face of major upheavals. Given the importance of stability in the American political system, the discussion now turns to this important aspect of American politics. One should not conclude from this review that policy stability is solely a result of the constitutional structure. Nor should one conclude that policy change does not happen. As we will see throughout this book, policy change can and does happen under the proper conditions. But in the end, anything more than incremental policy change is difﬁcult to achieve in the United States given our constitutional structure and our political culture. Stability in American Politics and Policy Making Policy restraint in the United States is both a cause and a consequence of key cultural and historic features that have made the United States one of the most politically stable nations in the world. Consider the sweep of American history compared with that of our Asian and European allies. The United States ratiﬁed its Constitution in 1789 and the forty-eighth state was admitted into the union in 1912. Two more were admitted in 1959. The United States’ gravest national crisis—culturally and politically, involving nothing less than the survival of the United States—was the Civil War, fought between 1861 and 1865, and followed by a lengthy period of reconstruction. But at the same time, the rhythms of national political life have changed relatively slowly, even as the details were altered by policy changes such as the popular election of senators starting in 1913, the extension of voting rights to more people, and the number of states in the union. Since the founding of the United States, Germany and Italy have both become national states; Great Britain amassed and then, particularly after World War II, lost its worldwide empire, as did France. France itself went through profound national crises, from the French Revolution to the founding of the Fourth Republic in 1956. Japan did not become a modern state until the 1870s and the opening of Japan to Western trade. Modernization and industrialization followed so quickly that by the Russo-Japanese War of 1905 Japan was a major regional political and economic power. It also became, almost instantly, a world naval power that would grow stronger and more ambitious, which would ultimately lead

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