The fourteenth amendment

                The fourteenth amendment remains one of the most important of all our constitutional rights. Although the fourteenth amendment seeks to uphold due process, it is the equal protection clause that has shown itself to be of major importance in terms of civil liberties in the United States. Article 1 of the fourteenth amendment stipulates that no state can “deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause has on many occasions enhanced the rights of minority groups such as African-Americans and others traditionally disadvantaged within the political process (such as women and gay people). The fourteenth amendment has been used repeatedly to justify the expansion of civil liberties within the states; and might be comparable to say the first amendment in terms of its resonance towards individual freedom.

                The fourteenth amendment was ratified in 1865 and is very much a product of what scholars traditionally label the Civil War amendments. It has been said that the winning side writes history, and the Civil War is certainly no exception to this. The conventional interpretation offered in American schools is that unionist forces sought to end slavery. This is stretching the argument a little, because the Civil War was essentially about the extension of slavery rather than its existence. It also ignores the fact that Abraham Lincoln suspended habeas corpus. That said; the Civil War amendments did represent a significant moment in the advancement of civil rights throughout the country. Since then, the fourteenth amendment has been used repeatedly to strengthen civil liberties. This was particularly notable during the liberal activism of the Warren Court. For example, the right to abortion on demand derives from the right of privacy as implied by the fourteenth amendment.

                In terms of the civil rights movement, the focus within the contemporary era has expanded towards gay and lesbian people. The issue of gay marriage received a significant boost from the Supreme Court ruling in the case of US v. Windsor (2013). Edith Windsor married her long-term female partner in a ceremony held in Canada. The ACLU defended her case and the judges ruled that due process had been violated in this particular case. As a result of the judgment, gay marriage is now legal in the state where Edith Windsor resides (New York). The ruling in effect overturns proposition 8 held in California during 2008, when the voters endorsed a proposal that marriage should be defined as a union between a man and a woman.

The eighth amendment

                The eighth amendment seeks to prevent “cruel and unusual punishment.” As one might expect within political discourse, it is debatable as to what constitutes cruel and unusual. The obvious starting-point here is the death penalty. To some, it could be considered a relatively unusual punishment within a democratic society. However, it is arguably less cruel than a lengthy period of confinement with seemingly no end in sight. Given the federalist character of our country, the use or otherwise of the death penalty is down to the states rather than the federal government (although the death penalty does exist for certain federal crimes such as the atrocity committed by Timothy McVeigh). Some states are much more inclined to use the death penalty (such as Texas), whereas the state of Michigan has never imposed the death penalty. During the Warren Court, the death penalty was ruled to be unconstitutional in the case of Furman v. Georgia (1972). However, the ruling was later overturned and the death penalty was once again judged to be in accordance with the confines of the eighth amendment.

                The eighth amendment has been the subject of a number of cases heard by the Roberts Court. In 2005, the Court ruled in the case of Roper v. Simmons (2005) that the death penalty was unconstitutional for crimes committed under the age of 18. In 2008, the Court decided that execution via lethal injection was constitutional in the case of Baze v. Rees. In that same year, the Supreme Court ruled that the cruel and unusual punishment clause does not allow any state in the union to punish a criminal for the rape of a child (Kennedy v. Louisiana (2008)). Four years later, it was decided by the Supreme Court that a mandatory life sentence without chance of parole when given to a juvenile infringed the eighth amendment. The cases in question were Jackson v. Hobbs (2012) and Miller v. Alabama (2012).

The fourth and fifth amendment

                The fourth amendment prevents law enforcement officers and agencies from conducting unreasonable searches of people and unreasonable seizures of property. A warrant must therefore be provided on the basis of probable cause. In relation to the fourth amendment, evidence can be ruled inadmissible in a court of law if said evidence has been gained from an unreasonable search. Under the Roberts Court, two cases are worth highlighting in the context of the fourth amendment. In the case of Safford Unified School District #1 v. Redding, the judicial branch of government ruled that the school in question was at fault for conducting a strip-search for an over-the-counter pill not considered dangerous to pupils. In the case of Arizona v. Grant, the Supreme Court ruled that the police could not search an automobile once an arrestee had been secured unless they had “reason to believe” that such a search would yield criminal evidence.

The fifth amendment leads on naturally from the fourth, seeking to protect the individual from the abuse of power by law enforcers. The key aspect of the fifth amendment is the due process clause (which also overlaps with the fourteenth amendment). Under the terms of due process, no-one can be imprisoned or stripped of their rights and possessions except by the lawful judgment of their equals and in accordance with the law of the land. Other aspects of the fifth amendment concern the right to silence and double jeopardy.

                The war against terror launched by the Bush administration and maintained under the Obama administration bears relevance to the fourth and the fifth amendment. To take an obvious example, detaining terrorist suspects at Guantanamo Bay has circumvented both the fourth and fifth amendments. During the 2008 campaign, Obama pledged to close the controversial detention center. However, his administration has failed to close Guantanamo Bay due to disagreement between Republicans and Democrats over where to house terrorist suspects. Congressional Republicans (particularly those in the House of Representatives) share some of the blame, but the Obama administration could have done more to offer a realistic alternative to a problem that is sadly symptomatic of the ‘bitterness-as-usual’ atmosphere of Washington DC. It is perhaps worth adding here that the United Nations Human Rights Office has described the force feeding of prisoners on hunger strike at Gitmo as a violation of international law. As an interesting aside, it is perhaps worth noting that Obama’s grandfather was himself placed in custody without charge or trial for months on end in Kenya.

                Another recent development to consider in relation to the fifth amendment is the National Defense Authorization Act (NDAA). Passed by Congress on the 220^th anniversary of the ratification of the Bill of Rights, the NDAA enables the military to effectively decide without due process who goes on trial and who can be detained. For such reasons, the NDAA has been called “an historical threat to American citizens” by the ACLU. Furthermore, the right to a fair trial is undermined by the use of racial profiling (officially called “domain awareness”) by law enforcement organizations. It must be remembered here that the US is a federal system and the states have a degree of autonomy from the national government to enact laws they feel are appropriate. There is concern amongst pressure groups that represent ethnic minorities over the use of racial-profiling by law enforcement bodies. This whole issue resurfaced during the trial and subsequent acquittal of George Zimmerman, the man who shot the unarmed black teenager Trayvon Martin in accordance with Florida’s stand-your-ground laws. As President Obama pointed out, his own son would look like Trayvon Martin.

                From the perspective of the federal government, three key provisions of the Patriot Act concerning roving wiretaps, searches of business records and surveillance of ‘lone wolves’ were extended in 2011. All three provisions undermine the fifth amendment, thereby adding credence to the view that certain constitutional rights are becoming less relevant in the war against terror. In the contemporary era, the fifth amendment has come under significant strain as America searches for security in an uncertain world.

The second amendment

                The meaning of the first amendment is widely accepted by liberals and conservatives alike. The same could not be said of the second amendment. The division between a liberal interpretation and a conservative interpretation of the second amendment matters deeply due to the prevalence of gun ownership within the states, and the emotional attachment to which the American people have towards the right to bear arms. For many people, it is truly a symbol of what is means to be an American.

To those on the right, the second amendment allows an individual to own a gun. As the Roberts Court made clear in DC v. Heller (2008), the second amendment protects an individual’s right to bear firearms. This is consistent with the broader ethos of the Bill of Rights (with the obvious exception of the tenth amendment) which protects the rights of the individual against the government. To liberals however, the second amendment refers to a collective right to keep and bear arms. The wording places an emphasis upon a “militia” rather than the individual. It is only the militia that should legally bear arms, perhaps commanded by the governor of that state. The liberal interpretation is also consistent with the preamble to the Constitution (“provide for the common defense”).

                Given the highly charged nature of the debate concerning gun control, and the ideological polarization that characterizes politics in the states; it is difficult to identify a genuinely objective standpoint. The wording certainly emphasizes militia, and one that should be “well regulated” and “necessary for the security of a free state.” However, the last fourteen words seem to support the interpretation associated with those on the right. This being politics, the debate goes well beyond one of semantics. It really matters to everyone in this great nation! It is undoubtedly the case that many people within the states perceive the ownership of a gun as an expression of individual liberty. It may be couched in high-minded rhetoric or populist angst; but the perception is exactly the same. Many Americans accept that they – and they alone – must protect themselves and their families against those who threaten their property (ranging from criminals to government-imposed tyranny). Regardless of the erudite arguments put forward by the liberal side, millions of people view ownership of a firearm as an individual right derived from the founding fathers.

As one might expect from a Democrat administration, Obama has tried to strengthen gun control in the states. In the wake of the Sandy Hook shootings, Obama set up a taskforce led by Joe Biden to consider ways in which access to guns could be controlled. Obama also gave his personal support to gun control initiatives in Colorado and New York City. However, proposals to expand background checks for gun purchasers failed to gain sufficient support in the Senate. Moreover, the Republican-controlled House of Representatives did not even bother to consider such legislation. In 2015, Obama candidly admitted that the failure to implement effective gun control measures was the biggest frustration of his presidency.

In terms of public opinion, the contrast between the first and the second amendment could hardly be greater. The American public has largely acquiesced to some curtailment of free speech and freedom of association in order to combat the threat of terrorism. However, the Obama administration has found it very difficult indeed to persuade people of the need to accept gun control measures. Revealingly, sales of firearms rose sharply after Adam Lanza shot and killed 20 children at the Sandy Hook elementary school. Sales were fuelled by a belief that Obama might actually succeed in imposing stricter gun control measures. In relative terms, few countries celebrate gun ownership with quite the same vigor and paranoia as the United States of America. 

The first amendment

                The first ten constitutional amendments were proposed by Congress in September 1789 and ratified by the required number of states by the end of 1791. Taken together, they are commonly referred to as the Bill of Rights. For well over two centuries now, the Bill of Rights has helped to define what it is to be an American. Most famously, the Bill of Rights protects positive rights such as the right to free speech, to peaceful assembly and the existence of a free press. The Bill of Rights also upholds negative rights such as freedom from cruel and unusual punishment. It holds practical meaning (such as the right to plead the fifth) alongside those concerns that have become largely irrelevant in the modern era (such as the third amendment which protects citizens from having to give house room to soldiers). Finally, the Bill of Rights contains arguably the most contentious constitutional right of all; the right to bear arms.

As one might expect, the first amendment sets the tone for the whole document. It reads as follows; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It is a clear and bold statement that the rights of the individual and the press will be protected via the Constitution. As you are doubtless aware, there are a vast range of examples that fall under the rubric of the first amendment. For instance, you may already be aware that an American citizen cannot be banned from speaking about their experience of serving on a jury. In terms of free speech, an interesting one to consider is that of Morse v. Frederick (2007). In a 5-4 ruling, the Court concluded that the first amendment does not prevent educators from suppressing free speech amongst students. The School had quite reasonably sought to suppress comments that seemed to encourage the use of illegal drugs. In another case, that of Snyder v. Phelps (2011); the Supreme Court ruled that speech on a public sidewalk about a public issue cannot be liable for a tort of emotional distress. The case concerned public protests during a funeral, a practice most Americans would find distasteful.

As a consequence of 9/11, there is little doubt that the rights of the individual have to some extent been curtailed. The real question for us all to consider is “have these restrictions been justified given the actual threat?” Civil libertarians claim that the state has exaggerated the threat of terrorism in order to restrict the right to free speech and assembly (Wolf, 2008; Morozov, 2011). This is certainly a cogent argument with many relevant examples to consider. What is perhaps surprising is that the Obama administration has been more draconian concerning civil liberties than the Bush/Cheney era. For instance, data-mining has been expanded via the PRISM program. The current administration has also increased usage of the Biometric Optical Surveillance System and the CAPPSSII program (in which the authorities profile the entire population in order to identify a flight risk or suspected terrorist). It should also be noted that the Obama administration bugged the phone of international allies such as the German leader Angela Merkel and sought a court order to examine the e-mails of James Rosen from Fox News. It should also be noted that the Guardian newspaper in Britain claimed that the President had ordered the creation of a list of foreign targets for cyber-attacks and authorized hits on foreign nations. All these examples could easily be interpreted as a curtailment of our right to free speech and our freedom of assembly. Yet perhaps the most interesting case study to consider is the treatment of the NSA whistle-blower Edward Snowden. In June 2013, he informed the media that the US government had violated our right to privacy on a massive scale. As a result of his actions, we know that the current administration had been spying on the internet activity of American (and foreign) citizens. Along with Julian Assange and Chelsea Manning, Edward Snowden has been charged with espionage by the current administration, despite the President’s pledge to lead “the most transparent administration in history.”

There is of course a counter-argument to consider here. Firstly, terrorists may well be more sophisticated in their methods than ever before. A ‘shifting of the goalposts’ might reasonably necessitate a more robust curtailment of civil liberties. Secondly, the public would doubtless prefer a tough stance against the threat of terrorism than be subject to another attack comparable to 9/11. Moreover, the public is simply not in full possession of the facts. The President, the Secretary of State and the secret services have access to information over the threat of terrorism that we simply never will. As the Indian statesman Mahatma Gandhi once said; “never judge a man until you have walked in his shoes.”

The relationship between the federal and state level

                The relationship between the national level and the states lies at the very center of America’s historical journey. The one true constant is that it's a relationship which is always evolving. At times in our history, the federal government has been in the ascendancy. At other times, the rights of states have been paramount. It is not my intention to offer a detailed historical account of the relationship between the states and the nation’s capital, merely to highlight some of the salient points in order to chart an overview.

                The relationship between the federal and local level of government is of obvious importance when seeking to comprehend the American system. There are two terms that might help to deepen your understanding. The first is called layer-cake federalism. This describes the situation in which both the federal and the state level have distinct areas of responsibility. For instance, the federal level is responsible for national security whereas the states have the capacity to set their own sales tax. The Constitution seeks to define these responsibilities in terms of enumerated powers (those laid down in the document) and implied powers (those powers suggested within the document). Marble-cake federalism however depicts the situation where the federal level and the states overlap in some manner. There are several illustrations of this overlap between the two ranging from education to the provision of welfare benefits.

                Historians have conventionally categorized three stages of federalism, although there is a debate to be had about that which term characterizes the modern era. The first stage is referred to as dual federalism. The states were the dominant actors during this particular era, whereas the federal government played little role in the lives of most Americans. The shift towards greater powers for the federal government did however gain some impetus during the Civil War. Constitutional amendments passed in the aftermath of the Civil War offered some protection against prejudicial policies implemented by the states, particularly those in the south. That said, the federal government remained secondary to the states. This historical epoch lasted from the birth of the Republic until the 1930s.

                The Great Depression marked a turning point in the role and significance of the federal government. As a result of this profound economic shock, the powers of the federal government gradually expanded via a set of policies first instigated by FDR. This era of co-operative federalism continued under a series of Democrat Presidents committed to the New Deal and a moderate Republican (Eisenhower) who did little to roll back the frontiers of the state. It was during this time that the United States emerged as the undisputed leader of the free world, which in itself required a significant expansion in the role of the federal government. Naturally, the Constitution played a crucial role. Although the sixteenth amendment was passed in 1913, it really came to prominence during the New Deal as it enabled the federal government to impose income tax and thereby raise revenue. It is always easier for an institution to expand power when that institution has control over the purse strings, and it is difficult to envision how the role of the federal government would have increased without the ability to raise revenue independently of the states. It is also worth noting that the federal government was prepared to exercise power over the states via categorical grants.

                The third period emerged during the economic turmoil of the 1970s. Whereas co-operative federalism owed much to the Democrats, the era of new federalism undoubtedly reflects a conservative rather than liberal mindset. The roots of new federalism lie in a reaction against the perceived excesses of the Great Society under Lyndon Johnson. The common themes of new federalism are to limit or reduce the role of the federal government, champion the notion of states’ rights and actively celebrate the rugged individualism of the American people. New federalism has been particularly welcome in southern states due to a historical antagonism towards the federal government. New federalism has also been built upon judgments made by the more conservative court under Rehnquist and Roberts. Finally, new federalism is characterized by a degree of skepticism about grandiose federal programs. As Ronald Reagan famously declared; “the [federal] government is not the solution to our problem; government is the problem.”

                It is uncertain whether the United States has moved beyond new federalism, although it is undoubtedly the case that the role of the federal government has expanded since the turn of the century under administrations from both parties. It is also true that no agreement exists over what term could be used to replace that of new federalism. President Obama has attempted to popularize the term progressive federalism to mark a distinction between his administration and that of his predecessor. Progressive federalism entails co-operation with the various levels of governance in order to promote social progress within the states. However, the term has not become part of the academic lexicon. Let us briefly examine the reasons why.

The state has been repeatedly utilized under the Obama administration in order to meet progressive goals such as universal health care and anti-discrimination laws. Moreover, the level of federal funds allocated to the states has also increased due to the re-authorization of the S-CHIP (State Children’s Health Insurance Program) and increased investment in health and education. However, it is difficult to readily identify a common theme or package under ‘no drama’ Obama. A man who claims to be an “extreme pragmatist” is hardly likely to change the course of federalism in the manner of a Franklin Delano Roosevelt or Richard Nixon. Some political figures are by nature idealists, others are more inclined towards pragmatism. Any objective view of Obama would surely conclude that he belongs very firmly in the latter category. Presidents could be categorized as transformational (such as FDR), reconstructive (such as Reagan), re-aligning (FDR is another example) or merely transactional. Obama is very much the latter, although the opportunity to be a game-changer certainly presented itself as the policies associated with new federalism were discredited by the credit crunch and the wars in Iraq and Afghanistan (which has now replaced the Vietnam War as America’s longest military conflict).

                Another reason why one should be reluctant to identify the modern era as progressive federalism is that the future after Obama is uncertain. As such, we need a degree of historical detachment before we can declare the end of new federalism with any real certainty.

Optimism mixed with realism

                The forces of history presented the founding fathers with a unique opportunity to start the world all over again, to learn from the mistakes of the old world and to implement a radical experiment. The word ‘experiment’ is entirely appropriate because the American Constitution effectively tests out the concepts of representative government and republicanism within the boundaries of how the political world was understood at the time (in that ‘liberty’ was exclusively associated with white male land-owners). That said; the Constitution was tempered by a skeptical stance on the corrupting influence of power. The American Constitution therefore reflects a stimulating mix of both genuine optimism and healthy realism about politicians.

                The optimistic streak within the Constitution is perhaps best exemplified in the phrase “pursuit of happiness.” No other country had ever used such a stridently positive tone, and no other country has done so since. This sense of optimism is one of the more appealing characteristics of the American people. Regardless of one's view of his administration, Obama’s campaign slogan from 2008 (“yes, we can”) resonated with the American citizens in a way that people in many other countries would find less convincing. This inherent optimism springs from being part of a country that is, in John Winthrop’s inspiring words; the city on the Hill.

Having offered these glowing observations, it must be accepted that the Constitution is also tempered by a very negative appraisal of how power corrupts. Men were viewed not as earthly angels full of virtue but as demons full of vice. Most notably, the Constitution seeks to ensure sufficient checks and balances upon those who might exercise power (what the political scientist Francis Fukuyama calls a “vetocracy”). Each branch of government has the ability to greatly limit the power of another. The separation of powers is also relevant here. The founding fathers were so fearful of tyrannical rule by the majority that they banned nationwide referendums and stipulated that elections should be held at staggered intervals in order to prevent one party dominating the various levels of governance. Each of the three branches has enumerated powers within their own specific remit. Even the world’s most powerful man is heavily constrained by the powers of the legislature and the judiciary. That said; the Head of State has been adroit at finding ways around the Constitution – at times ably assisted by Congress during periods of unified government. This was particularly notable during the imperial presidency era from FDR to LBJ, although examples can also be found from recent administrations under George 'Dubya' Bush and Barack Obama.

Separated institutions sharing power

                The phrase “separated institutions sharing power” pertains to a highly respected commentator on American politics; Richard Neustadt. He offered this particular phrase in place of the more widely used commentary of separated powers. The merit of Neustadt’s observation is that it offers an insightful picture of what the founding fathers sought to create during the constitutional convention. The American system is at heart one that could be characterized by a sharing of powers between the three branches of government. Power is also shared between the national level and the states. This distribution or dispersal of power is a striking feature of the American Constitution.

                As one might expect, the system of American governance has evolved over time. Powers that were originally held by Congress are now more commonly exercised by the President. The shift in power from the federal legislature to the White House can be located within a broader framework concerning the relative powers of the presidency. For now, it should be noted that the founding fathers viewed Congress as the dominant body. Indeed, it is somewhat telling that the Constitution outlines the powers of the legislative branch before that of the executive. The claim that the powers of the President have increased to an unconstitutional degree has been heard from figures on both the left and right. During the Nixon presidency, Arthur Schlesinger (1973) highlighted the sense of left-wing angst against ‘Tricky Dicky’ with the imperial presidency thesis. In regards to the current administration, the Tea Party movement claims that Obama has extended the powers of the federal government to a level that would be unconstitutional according to the framework created by the founding fathers.

                The relationship between the federal government and the states is, and will surely remain; a fault-line within the narrative of the United States. Disagreement between those who favor a stronger role for the federal government and those who favor a greater role for the states was present amongst the founding fathers. Since then, it has cast a lengthy shadow over the development of these United States. When seeking to reach a balance between the two, it should be recognized that some tasks might properly fall under the remit of the federal level, and there may be tasks that should be decided upon at the state level. Whatever compromise is reached, the division between the federal and state level encapsulates Neustadt’s description of separated institutions sharing powers. The United States is ultimately a federal system in which power is divided between different levels of governance rather than centralized by a unitary authority. Whilst the words “federal” or “federalism” do not appear in the hallowed document, the Constitution facilitates a federal system in which the various institutions share power.

Constitutional sovereignty

                The location of sovereignty, and its relationship to power and authority; is self-evidently an important component of any political regime. All constitutions ultimately seek to specify where sovereignty is located. For instance, sovereignty within the British system is located in the Westminster Parliament. Those countries that make up the United Kingdom of Great Britain and Northern Ireland (i.e. Scotland, Wales, Northern Ireland and England) are subordinate to the Westminster Parliament. The Houses of Parliament located in Westminster, London can transfer power to regional assemblies on the basis of devolution, but it can also decide to withdraw those powers at any time. Westminster can also decide to take Britain out of an international agreement or organization. From a very different part of the world, the Arab Spring marks an attempt to locate sovereignty firmly with the people in accordance with the concept of democracy.

In a federal state such as the US the central government is usually located in a small geographical area that houses the main decision-making institutions. The central government shares power and authority with the various regions/provinces, rather than having power centralized. Each of the 50 states has their own Constitution and their own Supreme Court. However, the Constitution of a state cannot in any way contravene the national Constitution. As Article 6 Section 2 (the national supremacy clause) makes very clear, the national Constitution takes precedence. The activities of both the state and federal level is thereby limited towards that which is most appropriate for that particular level of governance (such as the federal government maintaining a national emergency service). As such, sovereignty is divided between the center and the local level.

It should be noted here that in a confederal system sovereignty is located in the regions. Whereas the center may possess limited powers, it is the regions that play the predominant role. During the Civil War, confederate forces sought to protect the power of the states against the federal government. However, the victory of unionist forces marked a momentous turning point in the development of federalism and it seems fanciful in the extreme that the United States would ever return to the old confederacy system of governance. Although one can drive around the Bible Belt and see signs proclaiming ‘the South shall rise again,’ this seems little more than empty rhetoric and a relic of a mindset that embarrasses a great many southerners. The removal of the confederate flag from the capitol building of South Carolina in 2015 seems to mark a particular moment in our nation’s history. Moreover, a number of judgments taken by the Supreme Court have played an important role in the evolution of federalism, and therefore, in a broader sense, the constitutional location of sovereignty within the United States.

The location of sovereignty within a political regime can be a source of conflict between those who wish to decentralize power, and those who wish to centralize power. This is certainly one interpretation of how the Civil War began. Secondly, it should be noted that once power has been centralized the federal government is often highly reluctant to surrender that power. This might in part explain why the states are often disinclined to give up their power. Since the implosion of the New Deal coalition, Republicans have campaigned on a pledge to defend the tenth amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). This key aspect of the Republican’s southern strategy dates back to Richard Nixon’s victorious campaign in ’68.

Limited government

                In order to place the Constitution into its proper context, it is necessary to examine the values behind the document. In order of significance; these values consist of limited government, constitutional sovereignty, separated institutions sharing power and optimism mixed with realism. Let us consider each in turn.

                Like all such documents, the American Constitution is a product of its time and the worldview of its authors. The founding fathers sought to avoid the mistakes of the old world (such as the abuse of power by an unelected leader). Above all, they sought to prevent the emergence of another King George. As such, the whole emphasis of the Constitution seeks to prevent the concentration of power into the hands of the few; either as a ruler who sought to act like a King or an elite that might act like a cabal seeking to undermine the rights of the individual. As such, the Constitution ensures that a system of checks and balances is in place in order to protect us from the problems that plagued the old world.

                The stress upon limited government exists throughout the whole of the Constitution. Term limits on the President (as derived from the twenty-second amendment), an intricate system of checks and balances, a separation of powers between the three branches of government, an independent judiciary and protection for the individual against the abuse of power by the state are all the hallmarks of limited government. The cumulative impact of this emphasis upon limited government is a deep-seated suspicion within the American psyche of government itself, particularly over how a despotic regime could threaten the cherished rights and liberties of the American people. This fear manifests itself on both left and right; although in the contemporary era it is more pronounced on the right-libertarian side of the political spectrum.

To some extent, this fear of government is entirely sensible and rational. Despite the existence of a Bill of Rights and other notable constitutional amendments; successive administrations have curtailed civil liberties in several areas. Indeed, there is a striking continuity between the Obama and Bush administrations in their approach to civil liberties. The war against terror has been used to justify the use of waterboarding against terrorist suspects, a draconian approach to Wikileaks, the extensive surveillance against American citizens, denial of due process relating to enemy combatants held at Guantanamo Bay and the prolonged use of drone strikes. There is an almost seamless continuity between the privileged son of a former President and the charismatic Nobel Prize winner, despite the caricatures painted by partisan figures against their natural opponent. No wonder the average American is wary of what the government can do to our freedoms!

However, this fear of government can take on an irrational form. When left unchecked by reason, fear of government can become borderline hysterical. For instance, there are advertisements within select magazines for survival resources in the event of the government imposing a form of tyrannical rule over the people. On balance, it seems highly improbable that the federal government would violate the fourth amendment by seizing private property from American citizens. Never forget that America is a country where the ‘g-word’ is so toxic that the government’s response to an emergency situation such as Hurricane Katrina has to be described as the “federal family.” It also skews the debate over gun control. Sensible measures to prevent the proliferation of guns in American society are regularly discredited when opponents of such moves can stoke up fears of the government imposing tyranny upon the populace. The United States is also a tax-phobic country completely out of line with other comparable democracies. America was born out of a revolution against taxation, and the one sure-fire way to rouse a rabble is to persuade them that the government is imposing measures that threaten our constitutional rights.

There is much to admire about American society, but a true patriot should acknowledge there is also much to question in terms of the degree to which such arguments are taken to their extreme. All too often, political debate within America suffers from argumentum ad absurdum. Taking sensible measures by the government is not tyranny, nor is it socialist or comparable to Nazism (a claim made by Rush Limbaugh and Paul Broun against Obamacare). Indeed, by international standards President Obama belongs on the center-right of the political spectrum. I can only ask the reader to engage in reason so that the politics of the head triumph over the politics of the heart. The former creates clarity, whereas the latter clouds our judgment.

Introduction to the Constitution

The Constitution lies at the fulcrum of the American political spectrum. It affects all aspects of American politics from elections to political parties. The Constitution also impacts upon our everyday life including the activities of law enforcement agencies to quotas in the workplace. We learn from an early age about our constitutional rights and how we can benefit directly from the entrenched character of those rights (such as the first amendment that guarantees free speech and freedom of worship; or the equal protection clause of the fourteenth amendment). The Constitution is arguably the most important component of the political process, and one that sets the tone of American politics. However, when seeking to comprehend the political world we must always note the discord between theory and practice. Since 9/11, the executive and legislative branch of government has to some extent circumvented the Constitution. Whereas the Constitution does in theory offer protection for our freedom of speech alongside a guarantee of due process; it has done nothing whatsoever to bring about the closure of Guantanamo Bay or end the use of drone strikes. Administrations from both parties have taken the view that civil liberties should be curtailed to some degree in order to protect America from the threat of terrorism. This has often been achieved with slippery legalisms. For instance, according to the official authorities Guantanamo Bay is an offshore jurisdiction outside US territory and therefore outside the remit of the Bill of Rights.

                Any discussion of the Constitution inevitably leads towards a consideration of the relationship between the three branches of governance and the significance of civil liberties within the states. This area of inquiry also requires a close consideration as to how the Constitution sets the contours of the relationship between the various branches; particularly that between the legislature and the executive. It must also be noted from the outset that no Constitution can entirely protect and uphold civil liberties, no matter how well intended. Protecting our rights and liberties demands more than simply a piece of paper, even one so revered as the Constitution of the United States. I would also like to add that the workings of the Constitution can only be properly understood with some understanding of that material already covered in previous posts (notably elections and political parties).

Quotes on Pressure Groups

“[The Dodd-Frank bill is] filled with loopholes big enough for Wall Street executive and traders to drive their Ferrari’s through.” Robert Reich

"I like to pay taxes. With them I buy civilization.” Oliver Wendell Holmes Jr.
“It is an iron law of politics that those who stand to lose from a change in policy lobby much more intensively than those who stand to benefit.” Robert H. Frank
“Lobbying firms are a cancer on the political process.” Jeffrey Sachs
“Pro-choice means the government respects the individual.” Barbara Boxer
“Taxation without representation is tyranny!” James Otis
“Taxes are … widely seen by Americans as a denial of freedom itself.” Jeffrey Sachs
“The best thing about the Earth is if you poke holes in it oil and gas comes out.” Steve Stockman
“The bottom line is that it’s your money and you know how to spend it much better than anyone in Washington DC.” Tom Osborne
“The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent.” Elmer Eric Shattschneider
“The United States is privately rich but socially poor.” Jeffrey Sachs
“Ultimately, the ethics of American business depend on the conscience of America’s business leaders.” George W. Bush
“We vote.” Slogan used by the NRA

Political Action Committees

                A Political Action Committee (PAC) is an organization created for the purpose of campaigning for or against a political candidate. Money is derived from a number of sources including multi-national corporations, wealthy individuals and bundlers. As with other aspects of this section, the actual influence exerted by PACs may well be considered excessive. At the very least, there is always the potential for an unhealthy relationship to emerge between those who have money and those who make political decisions.

                Many PACs gain contributions from their employees (in the case of organizations) or their members. This could be considered undemocratic because not all employees or members would necessarily support that particular candidate. Those PACs who are not directly connected to a political candidate may also gain money from everyday citizens, thereby promoting a specific agenda in tune with its particular cause. There are also leadership PACs (such as Every Republican is Crucial and AmeriPAC: The Fund for a Greater America) formed by politicians themselves in order to fund campaigns by other politicians. This might reflect a degree of shared ideological ground or a semblance of party loyalty. Leadership PACs are formed for two reasons; to make allies and to make money. They can also act as something of a sounding board to the party leadership.

                Super PACs is a term widely used within political discourse, although it should be noted that it is not a type of PAC in itself. Super PACs simply refer to the increase influence of PACs since the Citizens United case ruled that organizations and corporations hold the same first amendment rights as individuals. The Citizens United ruling has prized open the floodgates for an even greater amount of campaign finance within American politics. During the 2012 campaign, it is estimated that super PACs spent over $546 million. The crucial point to note of course is that money from all PACs is categorized as soft money and therefore not subject to regulation from the FEC. The only legal obligation is that PACs must register their financial reports with the FEC. Money raised by PACs constitutes the majority of campaign finance raised in the states, which gives further support to the party decline thesis.

Clientelism

Clientelism offers us an explanation as to how the relationship between pressure groups and politicians operate. Clientelism states that the relationship is ultimately reciprocal and therefore of mutual benefit to both patrons and clients. Both politicians and the pressure group(s) concerned ultimately gain something from the link between them. For instance, one of the bundlers for Obama (Marc Benioff) chairs a company whose software his administration adopted for its federal agencies. On the Republican side, the chair of the Natural Resources Committee Doc Hastings received an amount of money from oil and gas companies in the run-up to the 2010 mid-terms. It should be noted that the Natural Resources Committee deals with petroleum conservation; and that Hastings blocked a Democrat-sponsored bill to enhance safety standards for offshore drilling. As with other theories and concepts within political discourse, clientelism is based upon certain assumptions that we need to identify.

Firstly, clientelism assumes that pressure groups possess a rational expectation from their contact with politicians. They assume that the provision of campaign finance will secure certain benefits to their members and cause. This might range from favorable legislation to generous levels of government subsidies. Clientelism also assumes that politicians seek to gain something from the relationship. This may take the form of campaign funds or an official endorsement. It may also result in a number of volunteers being recruited from that particular organization to help with voter registration. There is therefore an invisible contract between patrons and clients on the basis of shared benefits; both in an actual and a perceived sense. For example, a candidate from the Democratic Party might pledge favorable legislation for workers. In return, labor unions might provide funding and volunteers during an election. Leaders of such unions may also ensure that their members are registered to vote, as the majority of those who pay union dues tend to support the Democrats.

It is important to note that both sides must meet their mutual obligations in order for said relationship to develop. The relationship is also uneven in that clients may well have more than one potential patron. During an election campaign, wealthy donors and corporations can give their funds to candidates from both main parties. Indeed, some clients have a clear rational interest in providing funds to both sides because the outcome of an election can never be entirely certain. As such, it might be entirely logical for a pressure group to provide assistance to candidates from both parties (particularly when the election is likely to be closely contested). Either way, the winner of the election must recognize the obligation inherent within the relationship. If they do not, then they might fail to secure funding when they stand for re-election during a primary and/or a general election. In truth, this is the harsh reality of politics.

 

Many would claim that clientelism encapsulates the negative impact of pressure groups upon the political process, in that such groups may exert excessive influence upon decision-makers. However, the claim that such groups have an ‘excessive’ influence is difficult to properly substantiate because it is difficult to identify causality. In other words, politicians might adopt a particular line regardless of the support provided by certain pressure groups. One should also consider the counter-argument presented by the pluralist perspective; which states that the influence of one side of the debate is balanced by the existence of those groups that represent the alternative view. This is of course fully consistent with the broader ethos of a democratic society. 

The AIPAC

Any detailed understanding of the methods used by pressure groups and the significance of money within American politics requires an examination of one of the most influential and wealthiest of them all; the American Israeli Public Affairs Committee (AIPAC). Widely acknowledged to be one of the most respected and well-organized groups on K Street, it has rightly been described by the journalist Jeffrey Goldberg as “a leviathan among lobbies.” It is a sentiment supported by politicians from both sides of the political fence; with Bill Clinton depicting the group as “stunningly effective” and Newt Gingrich proclaiming the AIPAC to be “the most effective interest group … across the entire planet.”

As with any insider pressure group, there are various means available for the AIPAC to exert influence upon decision-makers. Given our previous discussion, it seems only logical to begin with money. The AIPAC can utilize money in order to sponsor a test case, launch and fight a proposition campaign, fund an amicus curiae brief in the courts and exert influence upon an electoral campaign. Of these, the last point is the most significant in terms of assessing the considerable impact of the AIPAC upon the political process.

The AIPAC influences an electoral campaign on the principle of reward or punishment. In other words, a candidate considered sympathetic to Israeli interests will gain both funding and access to a network of potential donors. However, if a politician is considered hostile to the state of Israel the AIPAC can divert resources to their opponent. Take the case of the arch-conservative Senator Jesse Helms. As a long-time critic of foreign aid, the AIPAC considered him unsympathetic to the self-proclaimed Jewish state because of the disproportionate amount of foreign aid received by Israel. During a particularly expensive campaign the AIPAC gave considerable funds to his opponent, and although Helms eventually won; it was a surprisingly close contest in a solidly red state. Soon afterwards, Jesse Helms was photographed wearing a yarmulke and kissing the Wailing Wall. It is worth noting that he remained a vocal supporter of Israel until his retirement from the Senate. On the Democrat side, Hillary Clinton reversed her previous support for the creation of a Palestinian state once she ran for office in the state of New York.

                The AIPAC are the quintessential insider group with a major presence within the corridors of power. The AIPAC even helps staff working in Capitol Hill to draw up proposed legislation and draft open letters designed to exert congressional pressure upon members of the executive. The AIPAC also contacts members of Congress (and those running for Congress) asking them to clarify their position on a wide range of relevant questions relating to the politics of the Middle East. In order to gain their endorsement, candidates are often ‘guided’ towards an uncritical pro-Israeli standpoint. According to one informed source, well over half of all House members will do whatever the AIPAC want. The figure is broadly similar in the upper chamber.

                The AIPAC also helps to maintain a largely positive image of Israel within the American media. Any perceived bias against Israeli interests may result in wild accusations of anti-Semitism, or the more caustic charge of being a ‘Jew-hater.’ More often than not, the AIPAC has the ability to misrepresent what has actually been said by portraying any advocate of a Palestinian homeland as a threat to the continued survival of the Israeli state. In politics, a half-truth can often be more devastating than a lie. The latter might seem incredulous, but a half-truth holds within it a believable potency that an outright lie does not.

                The evidence of the AIPAC’s influence within the political process can be identified most readily in the context of American foreign policy. To begin with, the level of foreign aid given to the Jewish state is wholly disproportionate to economic need. Secondly, the level of military resources sold and shared with the Israelis is far greater than any other country in the region. Moreover, diplomatic support within the UN and other organizations is largely favorable. For instance, the US has done little about Israel being in violation of international law since the 1960s. Whenever the President has  dared to criticize Israel, they have always faced pressure from the AIPAC to moderate their tone or risk losing vital support during an election campaign. On balance, one reason for this impulse within the higher echelons of American foreign policy is undeniably the activities of the AIPAC.