A BRIEF OVERVIEW OF AMERICAN HISTORY

NOTE: American history is controversial as a narrative in

terms of whether that narrative is mainly good (i.e. the
United States is seen as a model for liberal-democracy and
generally a force for good at home and in the world over
time) or mainly bad (i.e. the U.S. is founded on the taking of
Indigenous lands and slavery and has been a force largely
for oppression domestically and internationally). Obviously,
many acknowledge a balanced approach of both good and
bad attributes over time. I will leave it up to you to decide
but the following presents certain dates and events in an
attempt to be as value-neutral and balanced as possible here.

1/ Basic history

10,000 BC (or so) – circa 1500: North America settled by

countless tribes (the vast majority from Asia); these develop into
500 or so nations by the time of European colonization; these
tribes/nations had little to do with concepts such as state
sovereignty but wars were fought for land and resources; much
of this rich history is lost

Circa 1500-1763: North America settled by the English (later,

British), French and Spanish (with smaller Dutch, Swedish and
Russian settlements); the British heavily colonize the Atlantic
coast; the French colonize the St. Lawrence valley; the Spanish
colonize Florida and some of the South Western coast of
America; most Indigenous peoples suffer under the European
expansion (some co-operate with certain Whites, others resist
and are killed or are driven out; many others die of European
diseases); by early 1760s, France is defeated in North America
by Britain (the core of New France eventually becomes Quebec)

Slavery: This began in the English colonies in 1619 and was

prominent enough by the American Revolution to be an
important issue. Slavery was mainly made up of people from
Africa (Black people who arrived in the Atlantic slave trade) but
there were some Indigenous examples as well. While most of
the Atlantic trade involved the Caribbean and South America,
the character of slavery in the new colonies of Northern America
was even more brutal than in the areas mentioned. Slaves
(again, who were never Whites and who were the vast majority
of the Black population – during slavery, over time, some
Blacks became free) became seen as the personal property of
slave owners. Most Whites did not own slaves but wealthy ones
often did, including some of the U.S. Founding Fathers (NOTE:
a small number of free Blacks also owned slaves). The founding
of the United States put off resolving this practice and it may
have declined on its own, but the discovery of the cotton gin
meant that it became increasingly profitable in large numbers by
the early 19th Century (mainly in the cotton based U.S. South).
By this time, the Atlantic trade had ceased (and the British
Empire even abolished slavery in 1833) but the 3 million or so
Black slaves provided enough children for generations to be in
servitude. By the early 19th Century, slavery was the greatest
political issue in the U.S. with Northern states usually for
abolition (they became Free States with regards to slavery and
favoured new states to be Free) and Southern states for the
continuation of slavery and the expansion of it to new states.
This issue threatened to unravel the U.S. and despite
compromises, led directly to the Civil War of 1861-65.
1776-1787: most of the British colonies revolt (the 13 Colonies)
and defeat Britain in the War of Independence (the Americans
were led by George Washington with some Indigenous and
French help) after years of battles and resistance inspired by
British taxes and lack of proper representation; the first attempt
at the United States is formed in the 1781 attempt at a
confederation of the 13 former Colonies but it failed to create
any significant unity; the United States is fully formed by the
late 1780s (the Constitution of 1787 leads to a federal republic
with Washington as the first President); thousands of British-
backers, both Indigenous and Whites ('Loyalists') move to the
remaining British North American colonies

1812-1815: 'War of 1812' between Britain (and many

Indigenous allies) and the USA is mainly fought on 'Canadian'
soil by an attempt by American believers in Manifest Destiny to
clear the British out of North America; no clear victor emerges
in this war; this war leaves many decades of bitterness between
British North Americans/ Canadians and Americans

1815-1861: as mentioned above, in this period, slavery became

the central political issue; the expansion to the West was the
other main item in this period`(Florida also became part of the
U.S.), with major moves by those with European ancestry
(mainly British but this was becoming more diverse with
European immigration) to take more Indigenous lands in the
West, again often driven by the idea of Manifest Destiny (this
led to wars, expulsions, treaties – although these were often
violated); the 1848 War with Mexico was victorious and major
former Spanish colonial areas in the SouthWest became part of
the U.S.; many states began to be carved out of the Western
Territories or joined independently like Texas; political rights
(although limited to White males) were expanded and the U.S.
began to resemble more liberal-democratic features; the U.S.
began to assert itself in the Western hemisphere against
European colonialism and generally supported independence
movements in it but slowly the U.S. began to become somewhat
of a colonial power as well

1861-1865: the U.S. Civil War (in which over 1 million lost
their lives and millions more were harmed – called the first
modern war) began over the slavery issue and the election of a
Republican skeptical of slavery – Abraham Lincoln in 1860.
Many Southern states began to secede from the U.S. in 1861
(although the constitutionality of this was doubtful) and formed
a new pro-slavery nation-state called the Confederated States of
America; war broke out as Lincoln tried to hold the union
together by force; after many battles over 4 years (the
Confederacy often won many of these battles under the military
prowess of General R. E. Lee) the population advantages and
industrial strength of the North (the U.S.) was too strong and the
agricultural South (the Confederacy) surrendered in 1865 –
leaving much devastation in the South and a legacy of bitterness;

1866-1870s: the aftermath of the Civil war became known as

Reconstruction and has been called the Second American
Revolution with major constitutional changes; the assassination
of Lincoln in 1865 led to radical Republicans seeking to punish
the South for the Civil War and raising the status of Black
citizens; slavery was abolished and many Black people got
many rights (some were even elected to high office in the South)
but many Whites in the South became alarmed and began to
resist Reconstruction by many means (including the terrorism of
the KuKluxKlan); the two party system becomes established
between Republicans (then strong in the North and cities and
with Blacks in the South) and Democrats (then strong with
Whites in the South and rural areas) – with the Republicans
dominating this period

1870s -1917: Reconstruction is abandoned and Jim Crow laws

begin to take hold in the South leading to segregation (later
upheld by the Supreme Court) and the establishment of an
American apartheid system (Black people are reduced to second
class citizens in the South and some begin to flee the South for
jobs in the North but find much discrimination there as White
immigrants saw them as competition for work); continued
pushes for land in the West led to the final battles with many
Indigenous nations; the U.S. industrializes quickly becoming the
strongest economic power in the world; immigration and high
birth rates also quickly increase the population; the U.S. begins
to get more assertive in the Pacific as its navy grows

1917-1918: the U.S. enters WW1 on the Allied side and is

crucial to the defeat of Germany in 1918

1919-1941: the U.S. retreats from world leadership and its

capitalist system booms in the 1920s and almost crashes in the
Great Depression; the New Deal begins under the Democrats in
the 1930s and marks the beginnings of the shift of many Black
voters to the Democratic Party; women get voting rights
1941-1945: the U.S. enters WW2 and is crucial in the defeat of
Fascist Germany and Italy and Imperial Japan

1945-2001: the U.S. is left the most powerful state in the world
after the war by far and this time undertakes world leadership;
the Cold War with the USSR and its allied socialist states begins
with the U.S. and its NATO allies winning this struggle by
1992; the current shape of 50 states is achieved in the U.S.; the
civil rights struggle of Black Americans begins (led by Martin
Luther King) and with the help of certain Court rulings, begins
to dismantle the racist apartheid system in the South; in the
1960s, the Great Society welfare programs begin leading to a
modest welfare state in the U.S. (but small in comparison to
many other liberal-democracies); the current version of the party
system begins to form by the 1980s with the Republicans
becoming strong in the South, MidWest and rural areas and the
Democrats strong in most cities and with almost all Black voters
(and the majority of Hispanic voters too); immigration becomes
less Eurocentric as people come from all over the world to live
in the U.S. (many come from Latin America) but illegal
immigration also becomes more of a problem

2001- present: the 9/11 attacks on the U.S. lead it to declare a

War on Terror (mainly against Islamic extremists); the general
fiscal crisis of U.S. governments continues to grow as deficits
and debt pile up; the ongoing economic crisis poses new
challenges for the American state as economic inequality grows;
this inequality has been a strong source of renewed racial and
gender tensions in all parts of the U.S.; illegal immigration
becomes a bigger problem with Americans torn about how many
immigrants and asylum seekers to legally let into the country
yearly and what to do with at least 11 million people who are in
the country (many for decades now) who are not legal citizens;
the U.S. remains a strong international power but faces a
challenge from an increasingly powerful China; growing
political polarization is a concern (although there are times when
this has been high in the recent past i.e. in the early 1970s);
despite problems, the U.S. arguably is more of a liberal-
democracy today than in any time in its past

U.S. invasions

NOTE: this list attempts to show territories actually invaded by

U.S. armed forces (it does not include lands just attacked from
the sea or air eg. Libya, 1985, 2011); this list does not include
liberated territories from a foreign aggressor (eg. France, 1944;
Kuwait, 1991); it does not include Native lands in what became
the U.S. itself (eg. Hawaii)

1812: British North America

1848: Mexico
1898: many Spanish colonies (eg. Cuba, Philippines)
1900: China (the ‘Boxer Rebellion’)
1903: Colombia (to secure Panama Canal)
1900-1920: several incursions in Nicaragua and Honduras
1914: Haiti
1914-1917: incursions in Mexico
1916: Dominican Republic
1918: Germany
1919: intervention in Russia (during Russian Revolution)
1943: Italy
1944: Germany
1945: Japan
1950: North Korea
1965: Dominican Republic
1970: Cambodia (part of larger Vietnam War of 1964-1973)
1983: Grenada
1990: Panama
1991: Iraq
1994: Haiti
1999: Yugoslavia (Kosovo)
2001: Afghanistan
2003: Iraq
 U.S. CONSTITUTION

1/ 'Constitution'

- set of overarching rules that: 1/ establish branches of gov't and

their roles; 2/ clearly divide powers between levels of gov't; 3/
establish 'bills of rights'; 4/ establish amendment procedures
(how to change it)

- has legal force but also comprises conventions (practices)

which are not legally binding

Types:

'Unwritten constitution'

- an uncodified set of rules based on conventions and sporadic

legal documents (eg. Magna Carta in Great Britain)
- best example: the U.K.

'Written constitution'

- largely codified although there may be some conventions

- subject to much judicial interpretation
- best example: the U.S. – the American Constitution of 1787 is
a classic example of a written constitution which has formed the
template for most written constitutions in the world

2/ 1781 Constitution
 - after the War of Independence from Great Britain, the 13
newly sovereign states formed the Articles of
Confederation to create a United States confederation
(where the 13 states kept all their sovereignty)
- the confederation was weak as the central government only
got very limited duties from the states; no central army was
formed; no common currency was agreed upon and the
Presidents of this first U.S. were very weak figures who
were chosen and easily recalled by state governments

3/ 1787 Constitution

- what was clearly needed was a more perfect union which

would create a stronger central government; after intense
negotiations between the Federalists (those who wanted a strong
central government), and the Anti-Federalists (those who wanted
to keep full state sovereignty), a comprise between those that
favoured decentralization and those that favoured more
centralization was reached: the U.S. would be the first modern
federation with sovereignty effectively shared between the
central government and the states (although the people were said
to be sovereign, it was not a direct democracy) – this was
intended to be a fairly decentralized federation however

- the branches of government (executive, legislative and

judiciary) were more carefully laid out as well to form an
elaborate power checks and balances system horizontally as well
as the federal vertical checks and balances in order to prevent
the concentration of power in any one branch, level or individual
- the 1787 Constitution and 1791 Bill of Rights amendments
formed a federal republic with key elements of what became
known as liberal-democracy (at least for most White males in
the late 18th century) and is a great example of political
philosophy being employed by key politicians (like John Jay,
Alexander Hamilton, Thomas Jefferson, James Madison and
many others) to create a novel political experiment (something
unlikely to happen today!); unlike the 1781 attempt, this
experiment has lasted to the present day with some key
amendments and with the U.S. liberal-democracy being
broadened into a much more inclusive form of government over
time; the U.S. Constitution remains a classic of the written form
even today despite its age and its 18th century shortcomings

- the national (federal) constitution is supreme although many

states have had their own constitutions from the start – these are
in their own areas of competence and may include certain rights
for local governments

4/ Key parts of the American Constitution (the ones to know for

the final exam)

Preamble – the famous statement of intent beginning with We

the People…

Article 1: Legislative

Section 1: Congress; 2: House of Representatives; 3: Senate; 4:

elections; 5: rules of procedures; 6: privileges and restrictions; 7:
method of passing laws; 8: powers delegated to Congress
(federal powers); 9: powers denied to the federal legislature; 10:
powers denied to the state legislatures

Article 2: Executive

Section 1: President and Vice President and election through

Electoral College; 2: powers of the President (i.e. military,
appointments, foreign treaties); 3: exercising power under the
laws and reporting periodically to Congress (State of Union
address); 4: impeachment

Article 3: Judicial

Section 1: federal courts including Supreme Court; 2:

jurisdiction of federal courts; 3: definition of treason

Article 4: Relations among the states

Section 1: official acts; 2: privileges of citizens; 3: new states

and territories; 4: guarantees to the states

Article 5: Methods of Amendment

Proposal: a/ 2 thirds or more of each house of Congress; b/ 2

thirds or more of state conventions called by state legislatures

Ratification of proposal: a/ 3 fourths or more of state legislatures

(now 37 or more); b/ 3 fourths or more of state conventions
called by state legislatures (now 37 or more)

Article 6: General
- constitution seen as supreme law

Article 7: Ratification

- 9 original states were sufficient to get this constitution started

Amendments:

NOTE: 1-10 are 1791 and are called The Bill of Rights

1 – freedom of religion, speech, press, assembly

2 - right to bear arms

3- quartering of troops

4- search and seizure; warrants

5- rights of accused persons

6- right to speedy trial

7- jury trial in civil cases

8- bails, fines, punishments

9- powers reserved to the people

10 – powers reserved to the states

11- (1798) – suits against states

12 – (1804) – updated Electotal College for election of President
and VP

13- (1865) slavery abolished

14- (1868) rights of citizens (due process, equal protection of

laws)

15 - (1870) voting rights for Black males

16 – (1913) income tax permitted

17 – (1913) election of Senators by voters begun

18 – (1919) – prohibition of alcohol

19 – (1920) – voting rights for women

20 – (1933) – President assumes office on January 20 after

election year (amending the old date of March 4)

21- (1933) – repeal of prohibition of alcohol NOTE: only this

amendment was ratified by method b above

22 – (1951) – two term limit of Presidents begun

23 – (1961) – Presidential electors added to Electoral College

for Washington D.C.
24 – (1964) – poll taxes banned in national elections NOTE:
courts have used this section to ban poll taxes in all elections

25 – (1967) – President succession rules established in case of

Presidential disability

26 – (1971) – voting age lowered to 18 for all elections

27 – (1992) – forbidding pay raises for Congress members

during a sitting Congress (such pay raises would only take effect
in the election of the next House of Representatives) NOTE: this
was proposed in 1789 and took until 1992 to be ratified!

Written constitutions must be interpreted by courts. The

Supreme Court and other top courts have been instrumental in
shaping the American constitution. More on this will be given
in the Judiciary section.
 U.S. HORIZONTAL CHECK AND BALANCES –THE
PRESIDENTIAL SYSTEM

"presidential systems"

- first developed in the U.S. in 1787, also used in Russia, France

and many Latin American countries
- basically replaced the British monarch with an elected
President as governing executive
- not based on idea of responsible government (the executive is
responsible to the legislative)
- main idea: strong 'balance of powers' (checks on power) is
needed to prevent the concentration of power in any one person
or institution; humans are corruptible with power, so we must
guard against this
- less party discipline than in most parliamentary regimes

U.S. Presidential system: (the following applies to the federal

level but much of it is similar at the state level too)

NOTE: Many items below will be expanded on in later sections.

Three branches: a/ executive – day to day rulers within the laws

(President and Cabinet); b/ legislative - lawmakers (Congress:
House of Representatives and Senate - both directly elected); c/
judiciary – rule adjudicators (Supreme Court and lower courts)

1/ President: (head of state and head of executive)

- appoints Cabinet (but must be approved by Senate); Cabinet

members are not part of Congress (unelected)
- makes treaties, proposes budgets, executes laws, makes
bureaucratic and diplomatic appointments (but most items must
be approved by one or both houses of Congress)
- appoints Supreme Court justices and federal judges (but must
be approved by Senate)
- signs bills into law
- but can veto (refuse to sign) congressional proposed legislation
he does not like
- must report periodically to Congress ('state of Union address')
- can initiate legislation through supporters in Congress
- can pardon citizens

NOTE: The President (and Vice-President) is not directly

elected in the U.S. He (she) is elected by the Electoral College
(538 members). A majority of electoral votes is sufficient to
win the Presidency. If no one has a majority, the House of
Representatives decides the outcome. The College members are
usually to vote according to which candidate had the most votes
in a state. For example, if candidate A won the most votes in
Alaska, he (she) would have 'control' over that state's 3 electoral
college votes (the members of the College are usually party
members who have promised to vote for the winning candidate
in a state or in the District of Columbia). However, College
members have voted for someone they were not supposed to
support (rare). More will be given on this in the Elections
section.

2/ Congress (House of Representatives, Senate)

- House 435 elected members (based on state population)

- Senate 100 elected members (2 for each State)
- since 1913, Senate directly elected
- both houses must pass all legislation (the House by simple
majority and the Senate by 60% + on most items); often both
houses work jointly to agree on bills to send to the President;
both houses also formally initiate all legislation (although
sometimes bills originate with the President, not all do);
- can override a presidential veto (both houses need 2 thirds
majority or more to do so) to force a bill into law
- House can 'impeach' the President (and other top officials and
judges) by simple majority vote – then a trial before Senate and
Chief Justice is held (Senate needs at least 2 thirds majority to
throw President out)
- establishes lower federal courts and number of judges in them
(and may change the number of judges in the Supreme Court
too)
- can propose constitutional amendments
- Senate must approve of Presidential appointments

3/ Judicial branch (Supreme Court and lower federal courts)

- can declare Congressional laws unconstitutional (even old

ones)
- can declare Presidential executive acts unconstitutional
- these powers are known as 'judicial review' but require
governments or citizens to launch legal challenges

Problems of presidential systems:

1/ 'Gridlock' - difficult to get things done with all those checks

and balances
2/ likely gives the judiciary too much power - creates a legalistic
society

NOTE: The Canadian Prime Minister is normally (especially

with a majority gov’t) more powerful than the U.S. President (in
terms of their domestic politics). This is because the checks on
the Canadian PM in his parliamentary system are usually less.
Only when a Canadian PM has a minority gov’t and a U.S.
President has a strong majority in both houses of Congress are
their powers similar.
 EXECUTIVE

- make the day-to-day governing decisions: 1/ in the U.S., often

initiates policies; 2/ supervises the administration of gov't; 3/
makes appointments, foreign policy decisions etc.

The American Executive:

Head of State: President

Head of Gov't: President (the President is technically elected by

the Electoral College but, in practice, the Electoral College is
mainly selected by the voters of the U.S. voting for different
Presidential candidates)

Rest of Executive: Cabinet (25 members including the VP today,

but the number can vary – but there have been at least 15 core
members for a long time) - these are usually members of the
same party of the President (but not always) and picked by the
President and confirmed by the Senate. Cabinet ministers are
called Secretaries and head different government departments.
They are not members of Congress and are not elected. They
are responsible to the President but may be questioned by
Congress. The President and all members of Cabinet may be
impeached by the House of Representatives and removed by the
Senate.

The Vice-President (VP), also elected by the Electoral College,

is mainly a ceremonial figure who can stand in temporarily for
an incapacitated President or replace him if he dies, resigns or is
removed from office. However, the VP may be assigned certain
duties by the President and may vote in the Senate if there is a
tie vote there (the VP is the President of the Senate even though
she is not a Senator).

The President replaces a vacancy in the VP position if one arises

(with the approval of Congress). The President cannot fire a
VP.

The Speaker of the House of Representatives becomes the

President if both the President and VP are neutralized at the
same time (i.e in a terrorist attack).

The President is also served by a powerful White House staff

which he appoints. This staff has grown stronger as the
executive in the U.S. has grown stronger.

One must be a citizen at least 35 years old, be born in the U.S.

and have lived in the U.S. for at least 14 years to be President.

POWERS:

1/ Appointments

The President makes major and minor appointments when

vacancies arise including top federal judges (including the
Supreme Court), Cabinet members, top bureaucratic leadership
positions, diplomats etc. but these usually must be approved by
the Senate. This makes appointments generally more frustrating
for Presidents than chief executives in parliamentary regimes
where oversight or approval of appointments is less. Presidents
face the real possibility of rejection of their choices in the
Senate, especially when the Senate is controlled by a party
different to that of the President. Presidents must sometimes
pick a compromise choice to get approval.

2/ The Boss of Cabinet

Unlike parliamentary regimes, which often stress that all

members of Cabinet are equal, the President clearly dominates
Cabinets (even though the President is not formally part of
Cabinet). However, Cabinet Secretaries are often chosen for
their expertise in certain fields, so Presidents may give them
certain autonomy in heading government departments. But the
President may fire or reassign Cabinet members at will. The
Cabinet does not vote on executive decisions as in parliamentary
regimes. The Cabinet is not responsible to the legislative
(Congress) for governing confidence as is the case in
parliamentary regimes – which can lead to the fall of governing
executives if confidence is lost . Only the impeachment process
(or aspects of Amendment 25 in the Constitution – more on this
below) may remove the President or members of Cabinet before
the next fixed election date (every 4 years). But Amendment 22
of the Constitution basically limits Presidents to 2 terms in
office (2 election wins - these do not have to be successive).
Cabinet Secretaries have no such term limits.

The VP and the majority of the core 15 Cabinet members (or the
majority of a body created by Congress, or Congress itself), may
according to Amendment 25, declare to Congress that a
President is unfit for the office. The VP would then take over
the Presidency but the President can object to Congress about
this decision. The VP then has 4 days for her and her allies
again to state that the President is unfit and 21 days for Congress
to vote by 2 thirds or more to say that the President is unfit and
the VP should remain President. This power has never been
used but serious talk of using it was proposed during the end of
the Trump Presidency. This process is not easy to use.

3/ Executive acts

Presidents and their Cabinets are expected to act within the laws
passed by Congress. But only the President can issue executive
orders. The executive does not pass laws directly although the
President normally signs bills into laws. However, it can be
controversial when Presidents issue executive decisions (i.e.
orders) which many may see as going beyond what is demanded
by the law. In this case, it may be up to courts to decide whether
executive decisions are unconstitutional (if challenges to them
are forthcoming). In recent years, it appears Presidents have
relied much on executive orders to reverse the decisions of
former Presidents or to do new things. Most issue 200-400 of
such orders affecting the government departments and
bureaucratic agencies (Biden is approaching 100 orders already).
Supporters of such orders argue that the vast bureaucracy and
the complexity of governance today requires the President to
have much needed flexibility in the application and
implementation of Congressional laws. Again, critics think such
orders often create laws or amend them and therefore should be
used sparingly – if true, perhaps executive orders are part of a
disturbing trend that the executive is getting too powerful.
4/ The Veto power
Presidents may say no to bills passed in Congress (veto them).
Unlike heads of state in parliamentary regimes, who tend to
rubber-stamp bills into law, the President has real legitimacy to
try and kill a bill (or suggest amendments to it). The threat to
use the veto can also be powerful and force compromise on bills.
The veto tends to be most used when the President faces a
Congress controlled by the opposing party that passed a bill he
does not like or want. The President may formally veto a bill
(he needs to send it back to Congress within 10 days with
objections for the bill to be vetoed) and if Congress does not
override the veto, the bill is dead; if he refuses to sign it but does
not send it to Congress with the 10 day period, the bill becomes
law. If Congress adjourns before the unsigned bill is sent back
to Congress in the 10 day period, the bill is considered vetoed (a
pocket veto). Congress can try to overcome a pocket veto by
resuming its session (if possible) or gathering in a new session
and passing an identical new bill. In the past, some Presidents
have tried to use Congressional timing (i.e. the end of a 2 year
session) to lead to pocket vetoes so that their decisions might not
be overwritten by Congress, but courts have ruled in ways over
time to make the use of a pocket veto harder for a President.

5/ Initiating legislation

The President cannot directly initiate a bill in Congress – he

needs an ally there (a member of the same party) to start the bill
in the House or Senate. This includes budgetary bills. When a
President is of a party that controls both houses of Congress, it is
normally easier for the legislative agenda of the President to be
initiated and passed. However, even here, the President faces
obstacles that are not usually the case for chief executives in
parliamentary regimes. First, many bills really need at least
60% support in the Senate. A foreign treaty signed by the
President needs 2 thirds or more Senate approval. Second, party
discipline in the U.S. is weaker than in many other liberal-
democracies. A President often finds himself trying to
personally persuade members of his own party to vote for a bill
he wants (even though some members of the opposing party
may support it). When a President is of a party that controls
only one house of Congress (or none) or does not have strong
enough control (the situation for Biden now), then a President
may find his legislative agenda severely frustrated – even more
than chief executives with minority governments in
parliamentary regimes. Of course, the law-making initiative
may then pass to the opposing party in Congress for proposing
bills. If this happens, then the President can use his veto to stop
such legislation (assuming Congress does not have enough votes
to defeat the veto).

6/ Foreign Policy

Chief executives control this in most liberal-democracies and the

U.S. is no exception with the President Commander in Chief of
the Armed Forces (Governors do, in part, command state
National Guard troops but the President can take control of these
too). The President creates foreign policy including the
negotiation of treaties and conducts short-term military actions.
These can be significant (perhaps even a nuclear response) even
if Congress ultimately is needed for a formal declaration of war
and for the funding of longer term military efforts. Given that
the U.S. is the strongest military power in the world, and often
involves itself in world affairs, the President may appear
powerful given this reality. But the checks on this power are
generally greater than on other chief executives in liberal-
democracies. For example, several Presidential treaties never
came into effect (i.e. SALT 2 in 1979) because Senate
ratification failed to happen.

7/ Executive Privilege

Although not stated in the Constitution, it has been ascertained

that the President may consider some executive actions to be
secret and beyond the purview of Congress – especially if
national security is involved. However, the Nixon Supreme
Court case of the Watergate scandal in 1974 clearly showed
limits to executive privilege – as then President Nixon was
forced to hand over tapes which implicated him in criminal
activity and led to his resignation. However, it is not always
clear what the limits of this are.

The Imperial Presidency?

Some critics have noted that the President seems much more
powerful today (and this has been growing for many decades)
than the Founding Fathers intended. The Founders explicitly did
not want an American King or Emperor. The reasons for this
seem to be rooted in 2 items: a/ the growing power of the federal
level over time (especially since 1865 and post 1945); b/ the
growth of government (including executive agencies like the
Environmental Protection Agency and bureaucracy as a whole –
especially since the 1960s). The concern is that the checks and
balances are weakening and Congress may be getting too weak.
There is some truth to the above, and we have already noted
related things like the growth in things like executive orders.

However, compared to chief executives in parliamentary

regimes, the American President seems domestically weaker on
average. All liberal-democracies have faced similar concerns
with their executives, including concerns in Canada about the
growing power of the Prime Minister. This does not mean,
however, that nothing can be done about such concerns. I will
not address these possible solutions here.
 LEGISLATIVE

1/ Congress (bicameral legislature – two houses)

a/ lower house - House of Representatives (435 members) – the

House

- elected by the people in single-member districts by the single-

member plurality system (every 2 years – whole House); no
term limits on Representatives

- one must be a citizen at least 25 years old, been a citizen for at

least 7 years and live in the state one represents to be a
Representative (one does not have to live in the district she
represents)

b/ upper house – The Senate (100 members)

- elected by the people (since 1913) in state wide districts by the

single-member plurality system (one third of Senate elected
every 2 years); no term limits on Senators; 2 Senators represent
each state (50 states) regardless of population size

- one must be a citizen at least 30 years old, been a citizen for at

least 9 years and live in the state one represents to be a Senator

NOTE: Generally, when I say a house needs to pass or ratify

something by an amount, this means of total members present,
although key votes may well have all members present.

2/ The House of Representatives

The Speaker of the House is a key figure in determining House
business. The Speaker is chosen by a majority of the House (in
practice, this means the majority party chooses one of its own).
Unlike in Canada, the Speaker is not a neutral figure regulating
fair debates (although the Speaker has some functions to keep
decorum in House proceedings). The Speaker may cast votes
(not just in ties, as in Canada) but does not partake in debates
directly. The role is largely set by custom and House rules. The
Speaker then works closely with the Majority Leader in the
House in agenda setting, committee membership etc. If the
President is of the same party as the Speaker, the Speaker also
works closely with the President. If the Speaker is of a different
party to the President, she may become the chief opposition
figure to the President. Again, the Speaker is 2nd in line to
succeed the President if there is a vacancy (and a vacancy for the
VP at the same time).

a/ initiating and passing laws

All House bills (H bills) are introduced by the House members.

Normally, the majority party introduces the most bills (these
might also be bills the President wants if the majority party is
the same as that of the President). The House passes bills by
simple majority votes. Only the House is supposed to start
budgetary or money bills.

If a bill is vetoed, the House can repass it over the head of the
President with a 2 thirds majority or more (as long as the Senate
does the same). This is rare (less than 10% of vetoes have been
overridden). A House majority different from that of the
President would have to legislate with the threat of the veto;
however, in practice, compromise between the White House and
the House is sometimes achieved.

b/ strong committee system

The House has many long lasting (standing committees) and

temporary committees and subcommittees to examine bills and
perform other tasks. These are usually by proportion of party
strength in the House, although parties may sometimes agree to
have various chairs head the committees. Vigorous debates are
held in committees and subcommittees on bills. They may bring
in experts, witnesses, the public etc. in considering a bill.

The Rules Committee is powerful and is able to determine

whether committee recommendations (i.e to amend a bill in a
certain way) should be considered or not. The ruling party,
through the Speaker, has control over this committee.

c/ ability to question the executive

The House can examine members of the executive (although not

normally the President) and bureaucrats and call witnesses.
Again, this is not a power of Ministerial Responsibility or
Responsible Government as in Canada.

d/ impeaching top judges and officials

Only the House can impeach top judges and political officials,
including the President. Impeach here means bring the person
charged to a trial in the Senate. Formal articles of impeachment
must be drawn first and impeachment is activated by a simple
majority votes. Impeachment should be for constitutional
violations, including treason, bribery and other high crimes and
misdemeanors, although this can be subjective. Impeachment is
easier if the majority party that votes for it impeaches an official
of another party. 20 persons have been impeached at least once,
including 15 federal judges, one Cabinet Secretary and one
Senator.

3 Presidents have been impeached: Andrew Johnson (1868), Bill

Clinton (1998) and Donald Trump twice (2019 and 2021). All
survived removal attempts in the Senate, although Johnson did
very narrowly. Impeachment was not designed to act as a U.S.
version of government censure (no confidence) – especially
against a President. Its recent use has some concerned that it
could be abused in this fashion. It may be that as soon as one
party controls the House, it may try to impeach a sitting
President of another party for any reason it can find. Clearly,
this was not the intention of impeachment for the framers of the
Constitution.

NOTE: Richard Nixon was about to be impeached when he

resigned in 1974. His case was arguably the most obvious
reason for impeachment of a President (although I will leave that
determination up to you) and it is likely enough Republicans
would have voted to remove him in the Senate that he would
have been the first President to be removed from office.
e/ selecting the President
The House may be forced to select the President in certain
circumstances (more on this in the Election section).

3/ The Senate

The Senate is officially led by the Vice President (who is a

member of the Senate and can vote in a tie) but normally is led
by an elder Senator picked from the majority party known as the
President pro tempore – who regulates debates. The VP usually
does not sit in Senate business. The President pro tempore tends
to hand leadership over to the Majority Leader in the Senate in
agenda setting, committee membership etc. If the President is
of the same party as the Majority Leader, the Majority Leader
also works closely with the President. If the Majority Leader is
of a different party to the President, he may become the chief
opposition figure to the President. The President pro tempore is
3rd in line to succeed the President if there is a vacancy (and a
vacancy for the VP and Speaker at the same time).

a/ initiating and passing laws

All Senate bills (S bills) are introduced by the Senate members.

Normally, the majority party introduces the most bills (these
might also be bills the President wants if the majority party is
the same as that of the President). The Senate does not pass
most bills by simple majority votes in practice (more on this
below). The Senate may also introduce similar bills as
introduced in the House in order to work together on a
compromise bill later. The Senate is not supposed to initiate
budgetary or money bills according to the Constitution but it
often starts a budget of its own which likely leads to
amendments of the House budget. It can certainly amend
money bills and often tries to introduce spending measures
through amendments.

If a bill is vetoed, the Senate can repass it over the head of the
President with a 2 thirds majority or more (as long as the House
does the same). This is rare (less than 10% of vetoes have been
overridden). A Senate majority different from that of the
President would have to legislate with the threat of the veto;
however, in practice, compromise between the White House and
the Senate is sometimes achieved.

b/ strong committee system

The Senate has many long lasting (standing committees) and

temporary committees and subcommittees to examine bills and
perform other tasks. These are usually by proportion of party
strength in the Senate, although parties may sometimes agree to
have various chairs head the committees. Vigorous debates are
held in committees and subcommittees on bills. They may bring
in experts, witnesses, the public etc. in considering a bill. The
somewhat weaker party discipline in the Senate allows for very
strong personalities in committees.

c/ ability to question the executive

The Senate can examine members of the executive (although not

normally the President) and bureaucrats and call witnesses.
Again, this is not a power of Ministerial Responsibility or
Responsible Government as in Canada.
d/ trial chamber for impeached top judges and officials

Only the House can impeach top judges and political officials,
including the President. The Senate tries all impeachments –
usually with the Chief Justice presiding over the trial. At least 2
thirds of Senators must vote to remove an official. 20 persons
have been impeached at least once, including 15 federal judges,
one Cabinet Secretary and one Senator. 8 were removed by the
Senate (all judges).

3 Presidents have been impeached: Andrew Johnson (1868), Bill

Clinton (1998) and Donald Trump twice (2019 and 2021). All
survived removal attempts in the Senate, although Johnson did
very narrowly.

e/ ratifying appointments and treaties

The Senate has a key duty to carefully consider and approve key
Presidential appointments (i.e. judges, Cabinet members) and to
ratify treaties. Treaties need 2 thirds or more of Senators to be
activated. Appointments may require a simple majority of
Senators or a qualified majority (usually 60% or more). In
recent years, many appointments have been made using simple
majority rules. If a President does not have enough Senate
support, he cannot be assured that his appointments or treaties
will be accepted.

f/ selecting the Vice President

The Senate may be forced to select the Vice President in certain

circumstances (more on this in the Election section).
The Senate Filibuster

Technically, all bills pass in the Senate by simple majority votes

as they do in the House (see Constitution). However, the Senate
creates its own rules and early in the 19th century began to adopt
the idea that a Senator could obstruct a vote on a bill by
continuing to hold the floor and debate (this became known as
the filibuster or talking filibuster. 100% of Senators would be
needed to end debate (that is invoke what is known as cloture).
This was rarely used though and Senators often tired of debating
too long. However, by the early 20th century, during WW1,
President Wilson grew frustrated at groups of Senators delaying
the passage of some war measures, and so the Senate adopted a
rule that 2 thirds of Senators were needed to invoke cloture. But
this was too high a threshold to end debates during the civil
rights era when many Senators (usually Southern Democrats)
tried to use the filibuster to keep many key federal bills from
helping to unravel Jim Crow laws in the South. By the 1970s, it
was determined that the holding up of one bill did not hold up
all Senate business and all bills required 60% of total Senators
(not just those present) to end debate. As well, the talking
filibuster was abolished (it was deemed too hard on the health of
Senators who often had to keep speaking for many hours) and
bills tended to only be put forward for debate if the desired 60%
was possible. The 1970s changes essentially meant that most
bills and appointments had to be approved using the qualified
majority of 60%.

However, in 2005, it was determined that a simple majority of

Senators could change Senate rules (previously, at least two
thirds were needed). This meant that 51 votes could kill the
filibuster or chip away at it. The filibuster has begun to be
limited since: in 2013, Democrats scrapped the filibuster for
most appointments (excluding for those of the Supreme Court)
and in 2017, Republicans did the same for appointments to the
Supreme Court. Today, the argument is to carve out more
exceptions for certain bills or reform or abolish the filibuster
altogether. One suggestion has been to bring back the talking
filibuster – to make it more difficult for Senators to obstruct a
vote.

Some bills (especially related to spending bills) can be passed by

simple majority through the budget reconciliation process which
began formally in the 1980s to avoid the filibuster on some
measures. This process usually tries to reconcile differences
between House and Senate budgetary items and has limited uses
in a session and is controversial for what it might include. The
Senate Parliamentarian (an in house rules expert) often decides
what is part of the process but a simple majority of Senators can
bypass the Parliamentarian.

Filibuster pros:

- it can encourage compromise on bipartisan bills which avoid

the tyranny of the majority party, so that Senate bills may have a
broader appeal to the American people who support both major
political parties (this may be even more important in a polarized
political environment like today)

- it sets the idea in time that the Senate minority party will have
its views considered and that it not need fear being dominated or
that the majority party will try to rig the political system to its
advantage (and since the minority party may become the
majority within 2 years, it assures both parties of some influence
across time)

- it may help to encourage strong independent Senators further

weakening party discipline
- well considered laws may be more permanent as parties have
less incentive to try to undo laws passed by previous majorities

- the current practice may be best as the talking filibuster has

many problems

Filibuster cons:

- the Founding Fathers did not seem to desire it

- it can certainly encourage gridlock on bills and inaction too

and frustrate a majority party with 60% or less (usually the case)
– is a simple majority not enough in a democracy?

- its association with upholding the Jim Crow South in the 20th
century looks very bad today

- it may be best to abolish it as the talking filibuster has many

problems

In recent years, the calls to abolish or further reform the

filibuster have grown. The Democrats seem most willing to do
this today (although not all agree) and have accused the
Republicans of supporting the arcane practice. Both have
already weakened it on appointments. But the Republican
President Trump wanted it gone too so that he could pass more
of his agenda after 2016 (and many Democrats then opposed
abolishing it – and some Republicans). It remains to be seen if
the filibuster will survive into the future. Long term thinking
may be needed on this issue – not short term advantages.

4/ How a bill becomes a law

Unlike countries like Canada, the U.S. makes it very difficult to

pass laws. This is part of the checks and balances of the
presidential system. Bills have to normally pass three important
legitimate bodies: the House, the Senate and the President.

Below is a simple path for a bill in the U.S.

a/ The bill (a proposed law) is introduced in the House or Senate

by a member and may be a bill a President wants (or it may not).
If it passes one house, the bill may be introduced later into the
other house or a similar bill may be going through passage
simultaneously in both houses.

b/ The bill is sent to a House or Senate committee set up for

examining it (the committee may already exist or be set up for
the purpose of examining the bill – or it may be the entire house
as the committee). The committees tend to reflect party strength
and can call for witnesses, public hearings, experts etc. (or be
closed door). Committees may have or create subcommittees to
work on aspects of the bill.
c/ Senate or House committees report on their recommendations
for the bill (i.e. kill it, amend it and leave it as originally
drafted). Leaders of the House and Senate often have much
power as to how to proceed with the committee (the House has
more power in this regard). If leaders move forward, a vote is
held to proceed. The next step is on the House or Senate floor
where debate is usually held on the bill and what to do with it.
The committee might be sent back to do more work on the bill.
If a bill is agreed to, a final vote is taken. A simple majority
means the bill has passed the House but the filibuster rule makes
it harder to engage in debates or pass bills in the Senate.

d/ The House and Senate usually try to introduce and pass

similar bills. Disagreements on the bills (especially on
amendments) are common. Both houses must agree to any
amendments on a bill. The House and Senate may try to
coordinate their efforts to reconcile differences in a joint
committee (called a Conference Committee) so that a bill can
pass both houses. This may be impossible and the bill will die.
When one party controls one house and not the other,
compromise on bills is essential but compromise seems to be the
norm because of factors like the filibuster and weaker party
discipline – even when a party controls both houses.

e/ If a joint bill succeeds, the bill goes to the President for his
signature. The President can take no action (after which the bill
is shortly declared a law), sign the bill (which makes the bill a
law) or veto it by sending it to Congress with objections (or try
to send it back to Congress). If both houses of Congress do not
override the veto by two thirds majority or more, the bill is
killed by the veto. Otherwise, it becomes law.
Passing bills in the U.S. can be a very frustrating process for
many stakeholders. But this is what was intended. Finally, even
more frustratingly, laws may still be overturned by the Judiciary
– even very old laws.

5/ Party discipline and loyalty

Most liberal democracies function as a political party game –

they are essential to the functioning of the system. This was not
really the case in 1787 but it soon emerged in the country.
Congress members are technically independents representing
their districts or states. However, most are members of 2
political parties. In countries like Canada, elected officials are
usually strongly loyal to their political parties and their leaders.
Leaders also often have much power to discipline members –
either by punishing or rewarding them for their political
behavior.

In the U.S. party loyalty and discipline have been strong enough
for at least 100 years but, compared to Canada (and many other
liberal democracies), party discipline and loyalty are weaker in
America. Leaders can still punish and reward (i.e. with things
like committee assignments) but they have less powers here than
in Canada. Removing people from parties altogether is more
difficult in the U.S. (although, in practice, can still be done).
The President too really does not control his party members in
the way a Canadian Prime Minister does. There is also a strong
culture of independent minded Congresspersons – especially in
the Senate. Party discipline and loyalty are weaker (somewhat)
in the Senate. But none of the above is to say that party loyalty
and discipline are weak in the U.S. – many votes are still neatly
on party lines.

The U.S. reality may be good for those who favour

representatives playing the delegate role of doing what their
constituents want. This role is very weak in Canada. The
problem with this role is that it may be harder to pass legislation
(although those who do not vote with their parties may be
balanced by opponents who vote for the bill of another party). It
may also let interest groups have more ability to get their way
with representatives (if you think interest groups may be selfish
and a problem for democracy). Since the U.S. does not have a
parliamentary regime, it is also less important that the bills of
the government pass, since the government will definitely not
have lost confidence of the legislative. If the bills a President
wants go nowhere in Congress, he may be frustrated but he will
not lose executive power.
 THE JUDICIARY

1/ THE AMERICAN JUDICIARY BRIEF OVERVIEW

- legal branch of state

- interprets laws passed by politicians
- interprets common laws and practices
- essential to any state based on rule of law
- hierarchical series of courts which decide cases - highest court:
U.S. (U.S. Supreme Court)
- 'judicial review': idea that laws and executive acts can be
declared unconstitutional by courts; essential for federal states
and states with written bill of rights – courts in the U.S. (and not
just the Supreme Court) have has this power clearly since the
early 1800s; however, laws and acts must be challenged by
individuals, groups and governments for the courts to make
rulings; it is essential to the checks and balances system
- most Western judicial systems based on 'adversarial system'
(defendants vs. accusers)
- some countries have court systems have with no formal powers
of judicial review (the U.K. is still mainly in this situation);
limited review (France – its highest court can only declare bills
unconstitutional); strong review in theory (Russia, Japan); strong
review in theory and practice (U.S., Germany, Canada)

American Judiciary:

Highest Court: The Supreme Court of Canada (since 1787)

- 9 members (the number is set by Congress and not
constitutionalized – but it has been 9 judges for a very long
time); as little as 5 out of 9 can then make major political
decisions in throwing out laws (even old laws) or executive acts
that might impact the U.S. political landscape for generations
- all federal judges are selected by President and confirmed by
the Senate (now by a simple majority vote) – they are not
elected by the people – although certain local judges in states
may be; state Governors pick most state judges
- judges cannot easily be removed (but they can be impeached
by the House and removed by the Senate)
- no mandatory retirement age for Supreme Court judges
- hears many appeals from all lower courts

NOTE: In the U.S., criminal law is often a state matter, so the

most serious cases are often held in the state courts. Civil law is
basically a state power, so most cases are held in state courts.
However, there is some legal overlap in the U.S. federal system.

2/ JUDGES’ INTERPRETATION OF THE CONSTITUTION

In interpreting the constitution, judges often use one of two

major approaches – i/ the ‘original intent’ idea (that the
constitution should be seen as frozen at the time(s) of its
creation and the judges should be faithful to the writers of the
constitution); ii/ the ‘living tree’ idea (that the constitution, like
a tree, grows in different directions from its trunk, and these
reflect new understandings in society of older words in the
constitution)
- both of these approaches have their pros and cons, although the
‘living tree’ approach is often associated with activism (see
more on this on the next topic)
- in the U.S. as in Canada, the ideal is that the judges will try to
be neutral and not put forward personal biases, ideologies or
partisan preferences (however, this may not be the reality)

1/ Original Intent

- if the judges try to go by what they think the framers of the

Constitution intended, this has several advantages and
disadvantages

Advantages:

- this approach would likely mean that judges will not be

accused of ‘reading in’ or changing (amending) the Constitution
as they will stick to earlier intentions and leave it up to
politicians to amend the constitution if the earlier intentions are
no longer wanted

- this approach gives judges a clearer benchmark to make rulings

that are seen as consistent and are rooted in history

Disadvantages:

- this approach may make rulings seem stilted, inflexible and out
of touch with current norms/expectations

- this approach assumes judges know what the original intent is

– perhaps this was not originally clear and, in any case, it is up
to the judges to say what the words mean in a constitution

2/ ‘Living Tree’
- if judges try to be flexible in what they think the constitution
means today, this has several advantages and disadvantages

Advantages:

- this approach may allow judges to update the meanings of

constitutional words or phrases or find certain words (i.e. like
‘privacy’ in Amendment 14) to make the constitution reflective
of current societal understandings and so be more relevant

- it is very difficult (in practice) to amend the constitution – a

more flexible approach allows for political changes without
having to go through the time consuming and often frustrating
amendment route

Disadvantages:

- it is difficult to see flexibility as always fundamentally

different than ‘reading in’ (i.e. changing the words or adding
new ones) – which the judges are not supposed to do

- judges may not be reflecting changing societal understandings

of the constitution but imposing them on society through their
rulings – again, this approach may lead more easily to charges of
‘activism’

3/ JUDICIAL ACTIVISM?

‘Judicial Activism’ is difficult to define. After all, judges in the

U.S. are supposed to be active in protecting the constitution if
they feel cases brought to them concern constitutional
violations.

Rather, it usually means something along these lines: judges

are actively trying to impose their personal
beliefs/ideologies/agendas/partisan leanings on society by
making certain rulings brought before them. A consistent
pattern of the above can be seen by the decisions of the judges
over time. An ‘activist’ judge is therefore not neutral and non-
partisan but plays a biased political role in the formation of
legislation over time.

U.S. model (strong judicial review but strong oversight of

judicial nominees)

- Canada has historically had a weak system of nominating

judges which is based on the old ideal that all judges are
competent but non-partisan and non-ideological but the U.S. is
very different
- the President nominates all federal judges but and there is an
assumption that this choice will be political in nature (i.e. judges
who think like the President)
- so, if federal judge candidates are assumed to be political
actors who will have ideological and partisan leanings, the
Senate is therefore needed to carefully scrutinize (again, by
simple majority vote today) the candidates; the Senate may well
reject a candidate if the body feels that such a candidate will
long make rulings which change the political landscape of the
country in ways it does not like
- but the U.S. model also can create a ‘circus’ like atmosphere
around candidates (i.e. Supreme Court nominee B. Kavanaugh)
and create harsh partisan divisions in the Senate and society;
courts then become seen as political rather than neutral (perhaps
this only reflects that the ideal of neutrality is not realistic)
- it is difficult to say whether judges are activist in the definition
above: certainly, rulings are pointed to by observers who say the
ruling favoured the political left or right (and noticed the court
split in its ruling based on the perception that certain judges are
left or right because they were picked by Democratic or
Republican Presidents) but some rulings seem to go against the
grain of what one might expect; judges see themselves as fair
and objective and do not always like to be seen as partisan actors

- charges of activism are usually from the side that feels the
courts are against it, so there may be hypocrisy here: for
example, the political left has tended to like the Supreme Court
until recently when it became it apparent that a majority of the
Court had moved to the right

4/ SOME KEY SUPREME COURT RULINGS

Through the power of judicial review, courts in the U.S. have

been instrumental in shaping the political landscape – both in the
federal system and in the rights of citizens. The Supreme Court
is usually the final say on such review (as lower court rulings are
often successfully appealed). Below are some key rulings of the
Supreme Court. Most have been controversial.

Marbury vs Madison (1803) - largely established judicial

review in the U.S. (essential for judicial power)
McCulloch vs Maryland (1819) – established that the feds
could create a national bank using the necessary and proper
clause of Congressional power and federal laws clearly trump
state laws when in same areas of jurisdiction (expanded federal
power)

Gibbons vs Ogden (1824) – feds can clearly regulate interstate

commerce (expanded federal power)

Dred Scott vs Sanford (1857) – Congress could not prohibit

slavery into new territories and slaves were clearly seen as
property of owners (this was a notorious ruling that helped lead
to the Civil War and meant that slavery had to be abolished by
constitutional amendment – which happened after the Civil War)

Plessy vs Ferguson (1896) – upheld forced racial segregation as

not violating Amendment 14 as long as services were separate
but equal (this was another notorious ruling which largely
helped to prop up Jim Crow in the South and increase the rights
of states)

Schenck vs U.S. (1919) – put limits on free speech in wartime

(a clear and present danger) but generally meant that 1st
Amendments rights were considered robust

Brown vs Board of Education (1954) – basically began to

overturn Plessy above arguing that forced racial segregation in
public schools was a violation of Amendment 14 (this was a
crucial decision in favour of the Civil Rights struggle)
Miranda vs Arizona (1966) – determined that police must read
individuals in custody their rights (was helpful in creating more
police accountability)

Roe vs Wade (1973) – determined that abortion restrictions in

some cases violated the right to privacy of females (weakened
state power to regulate abortions in the first and second trimester
of a pregnancy)

Regents of the University of California vs Bakke (1978) –

argued that racial affirmative action quotas were illegal in state
universities but that race can be considered in admissions
(limited some forms of affirmative action but did not ban them
completely)

United States vs Lopez (1995) – limited the power of Congress

to regulate firearms near school districts using the interstate
commerce clause (weakened federal power somewhat)

National Federation of Independent Business vs Sebelius

(2012) – upheld most of Obamacare as constitutional but put
restrictions on interstate commerce as a justification for it
(weakened federal power somewhat)
 U.S. VERTICAL CHECKS AND BALANCES –
FEDERALISM

1/ "federalism"

'federal' - Latin: foedus - covenant, union, compact

decentralized centralized

sovereign states confederations federations devolution unitary states

eg. U.N. U.S. 1776-1787 U.S. 1787 - Spain 1975 - France

Modern 'federalism' - powers and responsibilities divided

between at least 2 constitutionally protected levels of gov't
(federal gov't, 'provinces', 'States', 'cantons', 'laender', etc.)

- sovereignty is ‘shared’: each level is 'sovereign' within its own

constitutionally defined sphere of control; no level is supreme
- powers can be rearranged only by consent of both constituent
units and federal gov't
- might go against idea that 'sovereignty' is indivisible
- require written constitutions that divide powers and are usually
interpreted by courts

'confederation' - constituent units are sovereign; general gov't

only has powers which are given by constituent units; these
powers can be taken back by constituent units alone; usually
decentralized; not many current examples – the EU is one

‘unitary state’ – central gov’t is sovereign; it can create

devolution - sovereign central gov't gives significant powers to
lower levels but these powers can be taken back by central gov't
alone; usually centralized; most countries are still unitary states
i.e. France, China

‘federation’ – 2 or more levels ‘share’ sovereignty (while often

maintaining that the people are really sovereign); many are
centralized or decentralized (but lean often towards
decentralization); many countries are now this: Canada, U.S.,
Germany, Russia, Mexico, India, Brazil, Australia, Belgium etc.;
it is a compromise between a unitary state and a confederation
(‘the more perfect union’ envisioned by the American Founding
Fathers to get away from the failures of the American
confederation of 1781-1787)

History of 'federalism':

- Switzerland a 'confederation' in 1291

- Holy Roman Empire of Middle Ages a 'confederation'
- modern 'federalism' consciously invented by Americans in
1787 (J. Madison, A. Hamilton, J. Jay) to create vertical checks
on power alongside the horizontal ones
- many federal states now operate on the American model,
including Canada (3rd one in the world)
- others are a variation on the American model eg. Germany
(which has less formal divisions of functions)
- some federations have been facades and actually operate as
unitary states eg. USSR
-federalism usually characterized by bicameralism: the upper
house often represents constituent units) eg. Bundesrat in
Germany; Senate in U.S., Senate in Canada (based on equal
regional representation - but the Canadian Senate is a poor
regional chamber of representation because Senators are largely
politically impotent appointees of the PM)
-the U.S. is a two-level federation (the federal/central level and
the state level) based on the idea of popular sovereignty: in
Article 1 Section 8 of the American Consitution gives the
federal powers; state powers are not spelled out but are assumed
to be the reserve powers (i.e. see Amendment 10) that the
central government does not have
- local legislatures and governments are assumed to be the
creations of states and are under their control but some states
have state constitutions which give the local level some formal
written autonomy – this is not done in Canada (however, these
powers can always be altered by states unilaterally by changing
state constitutions)
- the horizontal structures at the federal level are similar at the
state level (although top executives in states are called
Governors) but they may vary from state to state according to
state constitutions
- states have many important areas of jurisdiction in most social
areas but the feds have much power through the Constitution
Article 1 Section 8 Part 3 (interstate commerce) and Part 18 (the
elastic clause giving Congress the power to carry out what is
necessary and proper to realize federal powers) and the way
courts have tended to broaden such powers; the U.S. today may
not be watertight (stratified) federalism but what D. Elazar
called a matrix (all 3 levels overlapping in most areas) – the feds
tend to legislate in many areas of state jurisdiction (does this
violate the spirit of federalism?)

2/ Evolution of federalism in the U.S.

1787-1865: The U.S. started as a decentralized federation with
most powers assumed to be held by the states but government as
a whole was small at every level at this time (both in terms of
expenditures and taxes); the decentralized nature of this time is
clearly given by the Constitution which gave the states the
reserve powers, more taxation powers, the ability to choose the
President through the Electoral College, the ability to choose
Senators, among other items; this period was marked by states
asserting their rights over the slavery issue but key court rulings
began to expand federal power – again, these included
McCulloch vs Maryland (1819) which established that the feds
could create a national bank using the necessary and proper
clause of Congressional power and federal laws clearly trump
state laws when in same areas of jurisdiction and Gibbons vs
Ogden (1824) which established that the feds can clearly
regulate interstate commerce; people used to say the U.S. are
instead of is at this time

1861-1896: The Civil War period and its aftermath (i.e.

Reconstruction) clearly moved the U.S. in a more centralized
direction as key Constitutional Amendments tended to
strengthen the federal level (i.e. Amendment 14) and the feds
tried to impose a new order on the defeated South; however, by
the end of this period, Reconstruction had failed and Southern
states were asserting a new form of the rights of states (aided by
court rulings like Plessy)

1896-1933: Government remained small but progressives of the

time began to advocate for a stronger federal level to deal with
things like the breakup of monopoly capitalism; in 1913,
Senators started to be elected by the people making this
institution more national in orientation; a federal income tax was
constitutionalized

1933-1990s: This period saw the biggest growth in the size of

government with the federal level gaining the most functional
(program) and fiscal (taxation) powers; the New Deal of the
1930s (the beginnings of the U.S. welfare state) was almost
exclusively federally run and created (after initial court
resistance to it); the interstate commerce power was seen as an
even more expansive power for the feds to be involved in state
affairs – a good example of this is the way courts used this
power to allow the feds to regulate state businesses with the
Civil Rights Act of 1964 in cases like Heart of Atlanta Motel
vs United States (1964) and Katzenbach vs McClung (1964);
by the 1960s, the Great Society federal programs increased the
size of the U.S. welfare state; most taxation (which increased
tremendously) was now federal and spending was mainly federal
too leaving most states dependent on the feds for funds to run
programs in their own areas of jurisdiction – these programs
tended to be conditional grants which forced states to follow
them closely or lose funds (i.e. the strict social assistance
conditions of the Aid to Families of Dependent Children
program); unfunded mandates (orders by Congress for states to
do certain things without funding) also became more common;
by the 1990s, by many important measures, the U.S. was clearly
more centralized than many other federations (including
Canada) – something which would have likely puzzled the
Founding Fathers

1990s – present: We may be seeing a slow shift away from

centralization. The cases United States vs Lopez (1995) which
limited the power of Congress to regulate firearms near school
districts using the interstate commerce clause and National
Federation of Independent Business vs Sebelius (2012) which
upheld most of Obamacare as constitutional but put restrictions
on interstate commerce as a justification for it, may mean that
courts are becoming more skeptical of too much federal power
through the avenue of the interstate commerce clause;
conditional grants are still strong but states are being given more
flexibility to run programs in their own areas of jurisdiction (i.e.
AFDC was replaced in the mid 1990s by a program which
allowed states much more room to run social assistance as they
chose while still getting federal funds); unfunded mandates have
been lessened; it remains to be seen if future court cases may
strengthen state power even more (for example, if Roe vs Wade
if overturned); however, the U.S. remains a fairly centralized
federation even though states still have significant powers left
from the founding period

NOTE: The reasons for the evolution above are complex but it is
true that courts have been instrumental in shaping the federal
system (as in Canada too). Other factors, like economic and
social variables have obviously been important too over time.

NOTE: The President does not usually meet with the 50

Governors in high level meetings (in Canada, large summit
meetings between the Premiers and the Prime Minister are
common). This is because of logistics and because the U.S. is
fairly centralized.

3/ Pros and cons of federalism:

Pros:

a/ can create good checks and balances and help to promote

liberty (a big reason the U.S. create federalism)

b/ can help to accommodate regionally concentrated groups and

give them some protection/autonomy (i.e. good for diversity) –
another reason for U.S. federalism; for example, the serious
ideological differences in the U.S. today between so-called Red
(Republican) and Blue (Democratic) states might be best dealt
with if all states had even more powers and such states would
feel less put upon by federal governments they do not like

c/ can help very fragile nation-states stay together (see a and b

above)

Cons:

a/ may be inefficient due to overlap issues, jurisdictional

rivalries, confusion (see Katrina example below)

b/ may lead to a lack of accountability as levels blame one

another for problems in shared areas of powers (see Katrina
example below)

c/ may make courts too powerful in shaping federal constitutions

d/ may inflame the passions of minority groups for more power

(‘slippery slope’ idea that federal states may lead to breakups of
states)
e/ may hurt local minorities where regional majorities oppress
such minorities (i.e. Jim Crow South)

An example of the problem of federalism

On August 29, 2005, the U.S. suffered one of its worst hurricane
disasters. As well as significant damage done to areas of other
nearby states, the state of Louisiana was hardest hit by hurricane
Katrina. In particular, 80% of the city of New Orleans was
flooded. Katrina killed 1,836 people and caused some 81 billion
$ U.S. in damages.

Government, at every level, was criticized for how it handled the

crisis. It appears that federalism – divided government – was
part of a large bureaucratic problem exposed by Katrina and its
aftermath. Federalism, among many factors, must be seen as a
reason for the disaster known as ‘Katrinagate’.

1/ The federal government and response

- in 1979, the federal gov’t set up the Federal Emergency

Management Agency (FEMA) to deal with disaster relief when
local and/or state officials are overwhelmed (FEMA aid must be
requested by a state Governor)
- after 9/11, the Department of Homeland Security was created
and it was to run/co-ordinate FEMA activities

PROBLEM- FEMA was slow to react to the crisis and made

several mistakes due to many factors: a/ it was probably not
trained well enough for the magnitude of the crisis (but officials
had been warning for years of a New Orleans flood); b/ FEMA
was not activated early enough by the proper channels
(President Bush and Governor Blanco both seem responsible for
this); c/ FEMA often waited for proper authorization from local
officials before acting in certain local ways (this created inaction
and confusion); d/ FEMA often wasted resources in its efforts to
help eg. 12.5 million $U.S. was lost on melted ice; e/ director
Michael D. Brown was arguably not well trained for this
mission, and despite early praise from the Republican George
Bush, was fired on Sept.9; f/ there were some concerns of
overlap between FEMA and the Department of Homeland
Security

2/ The Louisiana government and response

- the state Governor (then Kathleen Blanco - Democrat) had a

responsibility to declare a state of emergency and ask for federal
aid
- Governor must call out National Guard and enforce state laws
against disorder

PROBLEM – Governor Blanco probably waited too long in

asking for federal aid and may have discouraged Bush from
initially declaring all areas as federal disaster areas (she says she
did ask him for all areas) and did not give the federal
government control over National Guard law enforcement (New
Orleans was lawless for days); Blanco did not ask for sufficient
National Guard help from other states – 40% of the Louisiana
National Guard was in Iraq; however, director Brown later
claimed that Blanco was largely ignored by the feds because she
was a woman and a Democrat (to make her look bad)
3/ New Orleans city government and response

While a city government is under state sovereignty, it was

expected that the Mayor of New Orleans (then Ray Nagin)
would play a key role in the crisis.

PROBLEM – Mayor Nagin waited too long to ask citizens of

New Orleans to leave the city (one day before) and then
provided little help for those without transportation (eg. trains
and school buses were not utilized well); the Superdome and
some city buildings were made available for ‘refugees’ but little
foresight was used to help what ended up being over 26,000
people trapped for days without proper food and facilities;
Nagin’s communications with FEMA and Blanco also seemed
strained
 AMERICAN NATIONAL POLITICAL PARTIES

1/ "political parties"

- formal organization whose purpose is to place in public office

persons (some of its members) who will govern in a certain
fashion
- recent phenomenon: grew with the extension of the franchise
(vote) in the 18th and 19th Century
- started as elite cadres/clubs and evolved into mass parties
- parties becoming formal-legal entities eg. tax deductible to
donate to them; laws regulating contributions, etc.

Functions:

1/ recruitment of party leaders; 2/ aggregation of demands into

party platforms; 3/ intermediaries between gov't and populace;
4/ training of party leaders; 5/ formation of policy (less so in
Canada); 6/ provide legitimacy

Types:

1/ 'pragmatic' party - non-extremist, weak ideological, pragmatic

'brokerage', ‘catch-all’ parties eg. Liberals in Canada
- try to appeal to broad section of voters
- often do well in liberal-democracies
- often accused of selling out on principles

2/ 'ideological' party - ideological eg. Communist parties

- often exist in one party dictatorships
- in liberal-democracies, parties like the NDP in Canada may
stick to principles more, but can they win enough votes?

3/ 'interest' party - narrow in focus, usually one interest eg.

Peasant Party in Poland or Bloc Quebecois in Canada (interest –
separation)

4/ 'personal' party - founded around a charismatic leader eg.

Gaullists in France
- may survive the leader, and get a new charismatic one or
perish
- in Canada, the Social Credit party started around the popular
radio preacher William Aberhart

5/ 'movement' party - originally a 'movement' (a broad interest

group) which becomes a party eg. Congress Party in India
- in Canada, the Co-operative Commonwealth Federation (the
NDP’s precursor) was a movement party at first

Political Party Systems:

NOTE: The systems below are not about the numbers of parties
that run or the number that make it to legislatures, but the
number of parties which tend to govern (are in the executive).

1/ 'one-party system' - a/ simple party systems (no opposition

allowed) eg. CPSU in pre-1989 USSR; b/ one-party dominant
systems (opposition allowed) eg. Liberal Democratic Party in
Japan
2/ 'two-party system' eg. U.S. (Republicans/Democrats); Canada
for many years (Liberals/Conservatives)
- 'two and a half party system': basically a two-party system with
a relatively powerful third party which is always in opposition
eg. Canada for many years (NDP as the third party)

3/ 'multi-party system' eg. France, Italy

- often characterized by coalitions and can result in instability

Some issues surrounding parties in liberal democracies:

1/ leadership

2/ platforms – should parties keep their promises?

3/ funding – private and public sources (are there limits?)

4/ ‘the decline of political parties’ (they have less members and

interest than before – but they are still vital in a representative
democracy)

2/ Major contemporary American federal and state political

parties:

a/ history of the party system

The U.S. is a two-party system by the definition above and has

been so, with several different political parties, since near the
beginning of the country. Even though political parties were
very new 1787, and the Founders did not really expect them to
be as they are today, they quickly began to develop in the U.S.
to form an early system. The U.S. is a representative democracy
(a republic) and parties were clearly going to be the main
vehicle for that democracy.

a/ 1st party system – 1792-1824

Federalist Party – believed in relatively strong central

government, relatively elitist (favoured the rich), opposed the
War of 1812 and faded thereafter; key figure Alexander
Hamilton

Anti-Federalists (became the Democratic-Republican Party) –

believed in a more decentralized federal system; favoured more
democratic rights (at least for White men); key figures Thomas
Jefferson and James Madison; became the main party after the
War of 1812

b/ 2nd party system – 1824-1854

Democratic-Republicans split into:

Democratic Party – populist and pro-farmer (against elites) but

pro-slavery and harsh on Indigenous peoples; key figure Andrew
Jackson; became strong in the South

Whigs – formed to oppose King Jackson who they thought was

too powerful (Whigs in Britain were those liberals who opposed
strong monarchs); divided on the slavery issue; key figure Henry
Clay

c/ 3rd party system – 1854-present

the beginnings of the current system:

Democratic Party – became the entrenched pro-slavery party of

the South with some broader farmer support (party split for a
time between a Northern wing which was loyal to the Union in
the Civil War and a Southern wing which supported the
Confederacy)

Republican Party – formed by anti-slavery Whig elements and

generally had Northern support; pro economic (industrial
modernization); key figure Abraham Lincoln

since 1865:

Democratic Party – was tarred by the defeat of the South in the

Civil War but retained Southern White support for over 100
years; remained committed to racism, especially in the South
where it was able to eventually defeat Reconstruction aims to
empower Southern Blacks (i.e. by KKK support and Jim Crow
laws); but it remained pro-farmer and eventually was able to do
better in the growing West and in the North by the late 19th
Century; eventually, some progressive ideas became strong in
the party by the early 20th Century (but not then on race); the
major change for this party was the New Deal era of FDR in the
1930s as it began to embrace some aspects of the welfare state
(and reform liberalism); this period saw the party do consistently
well in the North and it began to attract Black voters for the first
time in large numbers (1936); by the 1960s, the party had a
strong reform liberal wing in most of the country committed to
more social programs and civil rights legislation (even though
its Southern wing remained stuck in the old attitudes); by the
1980s, the Southern White voters had largely switched to the
Republicans but Black voters became a loyal block all over the
country (close to 90% vote Democrat) and many Hispanic voters
also became important to the party; once the party of farmers
and rural areas, by the 1990s, it was becoming apparent that the
Democrats were strongest in urban areas (especially in both the
East and West coasts) and among reform liberal voters; in recent
years, much of corporate America has embraced this party as it
moderated during the Clinton era to embrace neo-liberalism to
some degree

Some key figures – William Jennings Bryan, Woodrow Wilson,

Franklin Delano Roosevelt, John F. Kennedy, Lynden Johnson,
Bill Clinton, Barrack Obama

Republican Party – as the victorious anti-slavery party in office

during the Civil War, the party did very well for most elections
until the early decades of the 20th Century, especially in the
North and West (but it was resented strongly by Southern
Whites); radical Republicans wanted not only to end slavery and
give Black Americans citizenship but to establish better
conditions for them economically and politically – however,
such radicals were not successful in imposing this vision of
Reconstruction on the South (even though Black voters, when
they were allowed to vote, became strong Republican
supporters) - as Republicans began to lose interest in
transforming the South; the party became strong in the growing
cities and among the capitalist class – even though many farmers
distrusted them; by the early 1900s, the party seemed out of step
with some needed changes and faced challenges from the
progressives of the time; despite a period of success in the
1920s, the Great Depression left the classical liberal
Republicans largely in the wilderness until the early 1950s;
since the 1960s, the party began to embrace neo-conservatism
and oppose what it saw as big centralized government from the
Democrats; even though the party generally supported civil
rights laws, it lost most of its Black voter support by the 1960s;
slowly, its core base began to shift to conservative rural voters,
Mid Western and Southern Whites – even though it did
extremely well in certain elections all across the country on
occasion (i.e. 1972 and 1984); although still a party favoured by
many capitalist elites, it is ironic that Republicans are now weak
in many urban areas (especially on the coasts); in recent years,
the party ideology has begun to embrace elements of right-wing
populism

Some key figures – Ulysses S. Grant. Teddy Roosevelt, Dwight

Eisenhower, Richard Nixon, Ronald Reagan, George W. Bush,
Donald Trump?

d/ the 2 major parties today:

Democratic Party:

a/ ideology: in many ways, it has been a pragmatic party but its

ideology is made up of several competing camps: a/ centrist
reform liberals/moderates (strong in recent decades but
weakening); b/ center-left social-democrats/progressives (this
more radical group is getting larger); c/ neo-liberals (this group
tends to be socially liberal but economically more libertarian
than a and b above. In recent years, most of the above have
tended to adopt what can be called political correctness (or
wokeness) leaving few conservative-minded people in the party
today.

b/ issues: larger welfare state; abortion rights; more access to

voting; minority rights; immigration

c/main supporters: many Black and Hispanic voters; urban

voters; college educated voters; most media elites; academic and
educational elites; voters in the North East and West coasts;
growing numbers of corporate elites

d/ prospects: growing urbanization and immigration/racial

diversity tends to favour this party over time; its association with
many elites and political correctness may hurt it; if it becomes
seen as unpatriotic, the party will have even more problems; the
Republican attempt to paint the party as socialist (i.e. non-
liberal) continues to hurt the party (even if this is largely untrue)

Republican Party:

a/ ideology: in many ways, it has been a pragmatic party but its

ideology is made up of several competing camps: a/ mainly
reform liberal centrists/moderates (sometimes called neo-
liberals) - this group is fairly small); b/ libertarians (socially and
economically for maximum individual freedom – again, a fairly
small group); c/ neo-conservatives (for economic/corporate
freedom but social conservatism – large group, sometimes also
conflated with neo-liberals); d/ right –wing populists (ignited by
Trump, this growing group is conservative but critical of elites,
including many political and corporate elites). In recent years,
most of the above (especially d) have tended to adopt what can
be called anti-political correctness (or anti-wokeness) leaving
few leftist people in the party today.

b/ issues: smaller welfare state; limits on abortion rights; more

secure voting; immigration; school choice; law and order

c/main supporters: many White voters (although the Democrats

have significant White support too); rural voters; non college
educated voters; Mid West and Southern voters; some numbers
of corporate elites (but less in recent years)

d/ prospects: growing urbanization and immigration/racial

diversity tends to disfavour this party over time (it really must
do better with Black and some Hispanic voters); its association
with opposing many elites and political correctness may help it
but elite power is then brought against the party, potentially
hurting it; if it becomes seen as the main patriotic party, this
may help it tremendously; its growing support among the
working class (this class used to vote Democrat
overwhelmingly) is promising; but the more recent Democratic
attempt to paint the party as racist (or even fascist) (i.e. non-
liberal) is starting to hurt the party (even if this largely untrue);
its move to Trump style populism threatens to tear the party
apart between traditional politicians in the party and those
playing to the Trump style anti-politician stance (and it remains
to be seen if Trump will return)
NOTE: the ideological battle between the left and right is fierce
in much of the Western world (especially in the U.S. today) but
is really a battle mainly inside of the ideology of liberalism –
these camps really have more in common with each other than
ideologies which are not liberal; the attempt by some on both
sides to paint the other as outside of liberalism (i.e. the notion
that neo-conservatives are fascists or reform liberals are
socialists is not correct and is contributing to growing
polarization in the West). This is very true in America where
Republicans and Democrats (and their supporters) should
arguably try harder to avoid the growing polarization which can
tear countries apart. The U.S. was torn apart in the Civil War
over the slavery issue but today reasonable people on both sides
of the political divide arguably should be able to come to
common solutions without serious divisions and violence. And
yet, many forces, including media, social media and others may
be leading Americans into an increasing polarized party system
and country.

e/ some 3rd party challenges since the Civil War

The U.S. electoral system at all levels makes it difficult for 3rd
parties to challenge the dominance of the big 2 parties. Indeed,
the U.S. is essentially a first past the post system (more on this
later) which as Duverger noted, tends to produce 2 party
systems. There have been a few parties which have threatened
to break the joint monopoly of the Democrats and Republicans.

a/ Progressives: This party was associated with the former

Republican President Theodore Roosevelt and was formed to
advance so-called progressive ideas in the early 20th Century
(things like science, more direct democracy, hygiene,
prohibition, among others; it was actually a broad category of
things and had some populist elements – do not confuse this
with the term progressive today); Roosevelt finished 2nd in the
1912 Presidential election (in front of Republican President
Taft) making this the most successful 3rd party challenge in
modern times; but Democratic President Wilson adopted many
Progressive notions and the party faded by 1920; in 1924 and
1948, the party (by then with different leaders and platforms)
tried again but largely failed to break through

b/ States Rights Democratic Party: This party led by staunch

segregationist Strom Thurmond, led a challenge to the
Democrats in the South (they considered themselves true
Democrats – though they were called Dixiecrats by others); in
the 1948 Presidential election, Thurmond carried 4 states in the
South to have one of the best 3rd party challenges in modern
history; however, the party leadership and support generally
went back to the Democrats after 1948

c/ American Independent Party: This party had a strong showing

under segregationist George Wallace in the 1968 Presidential
race (3rd place – winning 5 states); essentially a far right
conservative party opposed to civil rights laws, it challenged the
Democrats in the South and did fairly well there; by 1972, it had
weakened and splintered thereafter into different factions

d/ Reform Party: This party was a center-right alternative to the

Republicans under businessman Ross Perot in the 1992 and
1996 Presidential races; Perot, like Trump later, appealed to
those tired of political elites; in 1992, the part won almost 20
million votes (but Perot carried 0 states) to finish 3rd; in both
1992 and 1996, this party likely caused the Republicans to lose
both elections to Democrat Bill Clinton; it has weakened
considerably in the last few decades
 ELECTIONS AND ELECTORAL SYSTEM

a/ Elections:

- source of legitimacy
- way to avoid political violence
- often specified in constitutions
- should be 'open' (pre-1989 USSR had elections but they were
not closed ballot and they did not offer electors a real choice)
- should not punish people for voting a certain way or reward
them
- must be fair in counting results (i.e. no ballot stuffing, people
voting twice etc.)
- measure 'will of the people'
- periodic

b/ U.S. national electoral system for House of Representatives:

NOTE: This is the electoral system in Canada too.

- elected by the people in single-member districts by the single-

member plurality system (every 2 years – whole House); no
term limits on Representatives

1/ 'first past the post' (single-member plurality system)

- one-seat districts (single-member) – House has 435 districts

- winner is one who wins a plurality of votes in a district (can be
less than half of votes); first past the post is a race horse term –
the winning horse is the one that passes the post first, regardless
of by how much
- system penalizes small parties and independents; tends to
produce a 2 party system in the U.S.
- often produces 'landslide' victories for parties with less than
50% of the popular vote or just over 50%
- can tempt politicians to draw up electoral districts in such a
way as to favour certain parties ('gerrymandering'); districts
usually are based on total population (roughly equal per district)
and their numbers are determined by the census; the 435 total
does not increase – so, the population of districts goes up over
time
- not many liberal-democracies use this system anymore

Example:

The U.S. has 435 districts which translates into 435 'seats' in the
House legislature. The 2 main parties usually run candidates in
each riding.

A House district:

Party A candidate (Republican) 48%

Party B candidate (Democrat) 49%
Other candidates (minor parties, independents) 3%

The Party B candidate is elected in this district. All 435 districts

are decided in this way. An outcome might look like the one
below. Note that the popular vote (all the votes for a party across
a country) might not match the percentage of seats.

Party A - 250 seats (but 49% of vote - unfair?) MAJORITY in

House seats
Party B - 183 seats – one of which is the district above (48% of
vote)
Others – 2 seats (3% of vote)

Recent results: (%) vote is national popular vote; 218 for a

majority

2020: Democrats 222 (51%); Republicans 213 (48%)

2018: Democrats 235 (54%); Republicans 199 (45%)
2016: Republicans 241 (49%); Democrats 194 (48%)
2014: Republicans 247 (51%); Democrats 188 (46%)

c/ U.S. electoral system for the Senate

- elected by the people (since 1913) in state wide districts by the

single-member plurality system (one third of Senate elected
every 2 years); no term limits on Senators; 2 Senators represent
each state (50 states) regardless of population size

NOTE: The electoral system for the Senate is essentially single-

member plurality in practice for most states. A few use single-
member majoritarian (runoff system) as they have runoffs (top 2
candidates remaining) several weeks later if no candidate wins
over 50% the first time.

- two-seat districts (two members) per state (the district is the

whole state) – the Senate has 50 districts (with 2 members each
for 100 Senators) but since Senators are usually elected one per
state during election cycles, it tends to operate as a single-
member system
- the winner is one who wins a plurality of votes in the state (can
be less than half of votes)
- states remain the same size, so gerrymandering is not an issue
but state populations vary widely, making some Senators
representative of very small or very large populations; the 2
Senators represent each state equally even if they are from
different parties

A state:

Party A candidate (Republican) 46%

Party B candidate (Democrat) 45%
Other candidates (minor parties, independents) 9%

The Party A candidate is elected in this state. Roughly one third

of Senators are decided in this way every 2 years.

Recent results: (%) vote is national popular vote for the given
Senate races every 2 years (about 33-35 races); 51 for a
majority; Democratic totals include 2 Independent Senators who
side Democrat

2020: Democrats 50 (47%); Republicans 50 (49%)

2018: Republicans 53 (39%); Democrats 47 (58%)
2016: Republicans 52 (42%); Democrats 48 (53%)
2014: Republicans 54 (52%); Democrats 46 (44%)

c/ U.S. electoral system for President and Vice-President

This system works in practice as a variation on the single-

member plurality system with each state having various basic
electoral points for the President/Vice-President election with
the candidate winning a plurality of the vote in the state winning
all the points (in most states) – therefore winning the district
(state – or Washington D.C.). Each state has points equal to its
House members plus 2 Senators (except D.C. which is not a
state and has 3 points). Large population states therefore have
more power to be influential in Presidential elections but it turns
out that low population states often hit above their weight
because they are guaranteed at least 3 points, no matter how
small their populations.

The Electoral College

The President (and Vice-President) is not directly elected in

the U.S. He (she) is elected by the Electoral College (538
members – this number is created by adding 435 for the House +
100 for the Senate + 3 for D.C.). It does not change but shifts as
states gain or lose House seats. A majority of electoral votes is
sufficient to win the Presidency (270+) and Vice-Presidency. If
no one has a majority, the House of Representatives decides the
outcome for the President (with the House members in each
state voting as a state bloc and a majority of states - 26 - then
deciding the Presidency; if a state bloc cannot agree, it cannot
vote for a candidate – leaving the possibility of multiple rounds
of voting to get a majority of states). It would be the newly
elected House which would make this contingent election. Two
elections, in 1800 and 1824, have been decided in this manner.
If no one has a majority, the Senate decides the outcome for the
Vice-President (with each Senator voting individually and 51
votes needed for victory). It would be the newly elected Senate
which would make this contingent election. One election, in
1836, has been decided in this manner.

The Electoral College is really made up Electors who today

are slates of party delegates who are usually pledged to
Democratic or Republican Presidential and Vice-Presidential
candidates. Since 1804, and the 12th Amendment, Electors vote
separately for President and Vice-President several weeks after
the early November election (every 4 years). The Electors do
not meet formally but their votes are officially counted in the
Senate under the watch of the sitting Vice-President. This
actually determines the election result. This is supposed to be a
formality.

The public in each state (and D.C.) actually elects the Electors
directly – again, the voters do not actually elect the
President/Vice-President. Some states still have the Electors on
the ballot (of each major party) and voters vote for them but
most states have the President/VP candidates on the ballot today
(for simplicity).

The College members generally are to vote according to which

candidate had the most votes (a plurality) in a state. For
example, if candidate A won the most votes in Alaska, he (she)
would have 'control' over that state's 3 electoral college votes
(again as the members of the College are usually party members
who have promised to vote for the winning candidate in a state
or in the District of Columbia).

However, College members have voted for someone they were

not supposed (not pledged) to support. These are called
faithless electors and there were 7 of them in 2016 but none in
2020. In most Presidential elections in recent times, there has
been 1 or 2 or none at all. Such Electors have never influenced
the result of an election but they could. The problem is that
many states have no laws regulating these Electors as to who
they vote for (it could be any eligible person – running for office
or not) or allow their choices to stand even if it means they are
punished (usually a fine). Other states may nullify the choice
the Elector makes (and some punish them as well). The
Supreme Court has recently upheld state laws regulating
Electors in voting.

Unpledged Electors have been a reality too (i.e. in 1960). These

are Electors who voters actually choose so they can vote for
others (unspecified) than the official candidates of pledged
Electors. In the early 1960s, the divisions in the Democratic
Party led some Southern states to offer slates of unpledged
Electors on the ballot who would likely vote for segregationist
Southern Democrats instead of Democratic candidates like
Kennedy or LBJ. This tactic proved mainly unsuccessful and
has been abandoned since.

Note that the winner of the Electoral College does not need to
win a plurality or majority of the popular vote. This is a
common problem for democracy/legitimacy in first past the post
systems.

Why this strange system that no other country uses?

All of the above is made possible because states are intended,

under the Constitution, to actually choose the President/Vice-
President. State legislatures create the framework as to how
their Electors are chosen and regulated. The initial idea of this
was to have each state legislature (presumably itself elected by
its citizens) choose the Electors to vote for candidates each
legislature liked. This was true in 1787 of Senators as well and
reflected the decentralized intentions of the Founding Fathers.
States would essentially choose the top executive. However, the
idea of democracy became powerful into the 19th century and by
the end of it, all states had created frameworks for their voters to
vote for the Electors (mainly pledged Electors) with the winner
take all idea prevailing – the winning slate of Electors of one of
the major parties would then dutifully vote for their certain
candidates. But states can always change this at will (more on
this later). Two states, Maine and Nebraska, are not winner take
all (each winning Elector there represents the plurality choices
in each House district).

As well, the idea that faithless electors could vote for someone
they were not pledged to made sense to some in the 19th century
in the sense of a check on the people/democracy. If the people
chose a really bad President, the Electors could defeat this
choice. Although very elitist and anti-democratic, there were
some people who wanted enough of the winning Republican
pledged Electors in 2016 to vote for someone other than Trump
as he was feared to be threat to democracy (only 2 did).

Problems of the Electoral College:

a/ it has similar issues to all first past the post systems

b/ a strong 3rd or 4th party challenge almost certainly could throw
the election into the House and Senate with the possibility of
stalemate in both chambers being very real – no executive might
be chosen (or it would take a long time); this means the 2 party
system is crucial to the Electoral College functioning at all

c/ faithless electors violate the spirit of democracy and are likely

illegitimate today; the solution would be for all states to legally
nullify their choices

d/ state legislatures can still revert back to choosing the Electors

they want; indeed, this almost happened in 2000 in the close
election between Bush (2) and Gore when it was unclear which
candidate had won a plurality in Florida (Florida – then led by
the brother of Bush (2) – was close to declaring all of its
Electors for Bush (2) – clearly, this also seems to violate the
spirit of democracy and is likely illegitimate today; a solution to
this would however require a constitutional amendment

Possible changes to the Electoral College:

a/ abolish it: i.e. have national one round votes for President (the
winner has a plurality of the popular vote) like in Mexico; or
possible national two-rounds (if no one wins a majority in the
first round, top to candidates remain to compete in the 2nd round)
as in France; problem – this would require a constitutional
amendment that at least 37 states support – this is unlikely given
that smaller states like the Electoral College

b/ states could agree that the winning electors in their states are
from the party that wins the popular vote; problem – all states
would really have to agree to this to get situation (a) above
without a constitutional amendment - this is unlikely given that
smaller states like the current Electoral College situation

c/ states could agree to divide up their Electoral College (E.C.)

votes by the proportion of the popular vote in the state i.e. if
Democrats win 50% of vote in state A, and state A has 30 E.C.
votes, the Democrats would get 15 of them; again, this might
only work if all states agree to this

d/ states could divide up their E.C. votes by Congressional

districts as Maine and Nebraska do

e/ or even other schemes/tinkering

Recent results: (%) vote is national popular vote; 270 E.C. votes
to win

2020: J. Biden (Democrats) 306 (51%); D. Trump (Republicans)

232 (47%)
2016: D. Trump (Republicans) 304 (46%); H. Clinton
(Democrats) 227 (48%); 7 faithless elector choices including 3
votes for C. Powell, 1 for B. Sanders, 1 for Faith Spotted Eagle,
1 for J. Kasich, 1 for R. Paul (2 should have gone to Trump and
5 to Clinton)
2012: B. Obama (Democrats) 332 (51%); M. Romney
(Republicans) 206 (47%)
2008: B. Obama (Democrats) 365 (53%); J. McCain 173 (46%)

4/ FPTP Summary:
Advantages of FPTP:

1/ - usually produces 'majority parties' (those with more than

50% of seats in the legislature); may get things done better than
minority parties or coalitions

2/ - does not usually give small, extremist parties legislative

power

3/ - it is simple for voters

Disadvantages of FPTP:

1/ - in a party system with more than 2 major competitive

parties, it tends to poorly reflect the popular vote - this is less
true in the U.S. because it has the 2 main parties but many votes
are still ‘wasted’ as the losing candidate(s) will represent no
voters

2/ - gerrymandering can easily happen (in House)

3/ - tends to have low voter turnout rates: U.S. turnout rates for
presidential elections have been around 49-65% in recent
decades (one of the lowest turnout rates in major liberal
democracies); rates for Congressional elections in between
Presidential 4 year elections (off year elections) are even lower
(sometimes in the 30-50% range)

4/ - it can produce 1 sided results i.e. if a President wins close to

60% of the popular vote, he tends to win almost all of the
Electoral College (see 1936, 1972 and 1984 Presidential
elections)

5/ Election laws

In the U.S., states tend to provide the laws and frameworks by

which elections are held. This includes state/local elections but
federal ones too. This reality reflects the original idea of a
decentralized federation. However, certain Constitutional
amendments have put restrictions on what laws can be
concerning elections including Amendments 14, 15, 19, 23, 24
and 26. As well, the Constitution may allow Congress to
regulate much about federal elections, so things like the federal
Voting Rights Act of 1965 have tried to get states to abide by
certain election standards (i.e. Sections 2 and 5 of this Act).
However, courts have not always supported such actions – in
2013, Section 5 of the Voting Rights Act which gave the feds
the ability to scrutinize current states that clearly discriminated
against certain voters in 1965 was largely nullified by the
Supreme Court as something outdated.

The recent attempt by the Democrats in the House bill HR1

(For the People Act) to centralize much about U.S. elections
remains highly controversial, partisan. It also might have
sections which the courts may see as unconstitutional. It
appears that it has been watered down in the Senate in an
attempt to find bipartisan support but even this may not pass
with the filibuster rule in place.

This leaves the U.S. with electoral laws which still vary widely
between states and create many controversies. Below is an
attempt to highlight some of the areas of concern in national
elections in the U.S. but to represent this information in a
manner as neutral as possible – given how partisan the issues are
in the country. A comparison with Canada is made to give
context – not to suggest that Canada is perfect on elections but
since we have much less controversy about elections in Canada,
perhaps Americans would be wise to more closely look at other
jurisdictions like Canada. This is not a perfect comparison since
the factors in the countries are different in certain ways (for
example, Canada has far less people who reside in the country
who are not legal citizens/residents and cannot vote or has had
less issues historically with voting and race – although some, of
course). By Canada below, I mean federal laws although
provincial election laws are usually similar.

Some election issues:

a/ Voter ID/proof of address

Many Democrats have tended to see this as burdensome,

especially on the poor and minority groups and so is called voter
suppression while Republicans strongly suggest this strongly
protects against voter fraud and ID is easy to come by and used
for all sorts of things in life.

Canada – Valid voter ID/proof of address is the norm in voting

and registration (a rarely used exception is a voter with valid ID
in a poll area in the riding may vouch for someone in the poll
area – in writing – who does not have ID).
b/ Early voting (in person)
Democrats tend to want to expand in person early voting
opportunities before the election day (and expand hours on the
day) while Republicans believe such expansion takes away from
the centrality of election day.

Canada – in recent years, in person early voting has been greatly

been expanded.

c/ Voting by Mail

Democrats tend to want to expand mail voting and that this be

universal (mail ballots sent to all) with just a signature to verify
the vote while Republicans have seen this mainly as a temporary
pandemic measure and feel that it can easily lead to fraud.

Canada – mail voting is allowed by request only with valid

ID/proof of address and signature. It increased during the
pandemic but is not a huge part of Canadian elections yet. Such
ballots must arrive before election day to be counted.

d/ Registration

Democrats would like to see easier access for unregistered legal

voters (some would like to drop ID requirements on this too)
including same day voting registration for all voters while
Republicans tend to see this as something which should be
facilitated before the election day and with strong verification.

Canada – same day voting registration is allowed with valid

proofs.
e/ Ballot collection (often called harvesting)

Many Democrats tend to think some non-partisan private third

parties can be trusted to collect multiple mail ballots in certain
places or neighbourhoods while Republicans see this practice as
too prone to fraud.

Canada – third parties are not allowed to collect special ballots –

only government election officials may do this in certain
contexts like old age homes and hospitals.

f/ Voting places

Democrats want to expand these in districts to reduce things like

long voting lines (and may even want to use special drop off
boxes) while Republicans tend to be against drop off boxes (too
untrustworthy) and claim that voting places have largely been
adequate.

Canada – special voting drop off boxes are not used but long
lines have sometimes been an issue in certain ridings suggesting
Canada may need to expand voting in certain locations (both
early and on election day).

g/ Counting ballots

Democrats tend to want every vote counted, so all votes should

be counted even if this is done after the election day (and some
are willing to count votes which arrive shortly after the election
day) while Republicans tend to want every vote counted before
the election day is over to be considered valid votes

Canada – votes can be counted after the election day but they
must arrive before the election day is over.

h/ Preventing gerrymandering

Gerrymandering is the practice of drawing up electoral districts

in such a way that it favours one political party more than others
based on voting patterns, demographics etc. Since district
redrawing is common with population changes, this must be
avoided to create fair elections. Both the Democrats and the
Republicans have gerrymandered districts in the past and both
continue to do so, as many states allow their state legislatures
(usually controlled by one party) to draw the districts.

Democrats tend to argue that only the Republicans gerrymander

(and often) and so all states should be forced to use non-partisan
independent commissions to fairly draw districts while
Republicans tend to argue that states should be allowed to do
this as they please, that the so-called independent commissions
in some states have not been fair and that Democrats still
gerrymander.

Canada – since the 1960s, gerrymandering has largely been an

non-issue as truly independent, non-partisan commissions have
drawn the districts/ridings.

i/ Campaign finance laws

There are laws that limit and regulate private (individual and
group) contributions to candidates, parties and campaigns in the
U.S. but in the 2010 Citizens United case, the Supreme Court
struck down limits on third parties to make contributions on
behalf of (but not to) political campaigns. This has led to so
called SuperPacs becoming vital to the two main parties.

The Democrats tend to agree with stricter regulation and

donation limits in elections and oppose the Court ruling above
(even as they have benefited from it too). Republicans tend to
be for less restrictions arguing for 1st Amendment rights
(freedom of expression) for individuals and groups in election
financing (and therefore tend to support the ruling above).

Canada – in recent years, Canada has created very strict

donation limits and regulations for federal elections, including
restrictions on 3rd party support. This has led to political parties
in Canada often facing low funds in election campaigns (and
some government financial support was withdrawn for parties in
2015 too).

6/ Is the American electoral democracy in crisis?

The polarized partisan political climate in the U.S. may be

leading to a major breakdown in American democracy. Again,
the U.S. system makes it hard for 3rd parties to break in – but 3rd
parties may be needed when many feel that the Democrats and
Republicans have failed the country for too long.

Electoral reform is likely needed (as suggested by the section

above) but perhaps not enough is being done to address the
arguably legitimate concerns of both major political parties and
their supporters. Most people in liberal-democracies agree that
elections should have broad access to voting and prevent
fraud/cheating – a balance that Canada largely seems to have
found. Legitimacy depends on the system being perceived as
fair. A truly bi-partisan version of HR1 may be vital but it may
not appear forthcoming (we shall see in several months). Some
feel that there seems to be evidence that both parties may to
want to rig the game to their advantages.

The 2020 Presidential election left tens of millions of

Republican supporters believing Trump that he had not lost the
election – despite no strong evidence (as of this writing) that this
is the case. The 2016 Presidential election left millions of
Democratic supporters with the impression that Trump had only
won because of Russian collusion help – again, despite no
strong evidence (as of this writing). The 2000 Presidential
election was very close and ultimately was decided by the
Supreme Court which said that Bush (2) had won a plurality of
votes in Florida (for many, the evidence for this has always been
controversial). Millions believed that Gore actually won in
2000. In 2004, Ohio nearly became the Florida of 2000 (but it
did not). The point is with recent Presidential elections so close
in the U.S. between the 2 major parties, the complications of the
Electoral College and the fact that millions on both sides of the
political divide no longer trusts who wins, the recipe for disaster
looms in the future (whether Trump returns or not). Political
violence, even on a large scale, cannot be ruled out. The entire
world would suffer if American democracy is largely seen as
illegitimate. However, there does not seem to be easy answers
to the problems above. Reversing the perception that elections
in the U.S. are unfair appears to be paramount. Political elites
and other elites (like media elites) likely must try harder to
create social solidarity through trust in institutions. Will they?