The Judiciary

The American legal system is based on the idea of "common law," from the English system. In a common law system the authority of judges to decide cases are emphasized. Many other countries have a "civil law" system where laws are laid out in written codes of law (e.g. the Code Napoléon), and the task of judges are to interpret when the laws apply in specific cases. In common law, obviously judges still have to follow the written laws, but are given more freedom to come to their own decisions. 

However, past decisions of judges are carried over into present cases, so before a case is decided, lawyers and judges consult past court decisions, this is known as "legal precedent," or stare decisis, since judges cannot contradict previous decisions (except in rare circumstances) the authority of past decisions has a strong hold on legal outcomes in the present. Furthermore, another feature of the American legal system are the high frequency of "plea bargains." Again, since common law allows for more interpretation, court cases can be very time consuming. To compensate for this, many cases are "plead out," meaning that the defendant will plead guilty to a lesser offense without a trial, in order to speed up the process of coming to a legal decision. Almost 80% of legal decisions in the U.S. are the result of plea bargains.

Common law countries also distinguish between criminal law and tort law (also called civil law, but different from civil law of other countries). Criminal acts violate the laws of the state, and are prosecuted by the state. Torts cover lawsuits initiated by people for damages resulting from the actions of others and are between individuals (the plaintiff and defendant). So, for example, driving while is intoxicated is a crime that can be prosecuted by the state, regardless if any injuries were done, at the same time, any injuries that are caused by the person can be held liable as a tort (sometimes called a "civil wrong"). There are different procedures in how criminal and civil cases are conducted. For example, OJ Simpson was acquitted in criminal court for murder, where jurors have to be certain "beyond a reasonable doubt", but was found liable in a civil lawsuit where jurors have to consider what is most likely, in other words the standard of proof is lower in civil court. "Tort reform" is an effort by corporations to limit the damages possible in a civil lawsuit, since corporations are liable under tort law for damages or injuries done to people, covering things like medical malpractice, environmental pollution, unsafe products, and more.

Of course the racial disparity of laws is something that needs to be addressed, particularly in how it manifests itself as the "war on drugs" which has led to the mass incarceration state. Many historians, like Michelle Alexander, see mass incarceration as the third period in African-American following slavery and segregation.

https://www.huffpost.com/entry/the-evolution-slavery-to-mass-incarceration_b_57f66820e4b087a29a54880f

 One of the architects of the war on drugs, John Ehrlichman, a close aide of President Nixon, even admitted, later in life, that the war on drugs was invented as a way of criminalizing black people, and the counter culture in general. http://www.drugpolicy.org/press-release/2016/03/top-adviser-richard-nixon-admitted-war-drugs-was-policy-tool-go-after-anti

Since the drug war involves both state and federal court systems, I will limit this discussion to the federal level and focus more on core principles like due process and judicial review, that nonetheless impact all aspects of the legal system including drugs, as well as the structure of the federal judiciary.

Conservatives, oppose what they call "judicial activism" or what they consider to be the judicial branch of government taking too much of a pro-active role in deciding legislation, rather than interpreting the law. However, this criticism seems to overlook the features of how a common law system works. That being said, the judicial branch has almost always tended to be the most conservative branch of government, the branch least influenced by popular majorities. It should not be surprising, that Alexander Hamilton, the most conservative of the founders, spent the most time emphasizing the importance of the judiciary in the Federalist Papers.

The federal judiciary (of which Hamilton was a prime architect) set up under the Constitution went into effect, along with the Judiciary Act of 1789 which further specified the structure and duties of federal courts. One of the busiest was the United States District Court for the Southern District of New York. The Judicial branch of the government, makes up more than the Supreme Court. The 94 federal district courts are the lowest level of the federal judiciary. Above them, presently, there are 13 U.S. Courts of Appeal, in most cases these are the highest federal judicial authority most people will deal with if they have to. Higher than this is the Supreme Court of the United States (SCOTUS) but it limits the amount of cases it hears every year to about 100. The Supreme Court has a maximum of nine justices of the court including the Chief Justice, and Associate Justices. They are nominated by the President, approved by the Senate and serve life-terms. The power of the court is specified in Article III of the Constitution. 

The primary concern of the Southern District today includes Manhattan and the Bronx and handling cases under "admiralty law" or cases involving trade or shipping disputes with foreign countries or interstate trade from other states. This is a highly sought after position and has been used a springboard for even higher offices, for example before he became Mayor of New York City in 1993, Rudolph Giuliani was the State's Attorney (or federal prosecutor) for the Southern District of New York. This is distinct from the Government of New York State and the City of New York, and you can see now how the different layers of government: federal, state, and municipal all overlap with each other depending on authority and function.

Southern District of New York

Legal matters involving trade with a foreign country come under the jurisdiction of federal law. Since the port of New York was the busiest port in the country, most cases involving disputes over shipping and international trade would occupy most of the court's activity.

The Supreme Court (as the federalists intended) has tended to play a more conservative role in government, often siding with business interests against attempts to regulate commerce through legislation. However, in the public imagination the court is seen as a crucial part of the civil rights movement, as the institution which finally ended legal segregation in the nation in the landmark case Brown v. Board of Ed. By looking at some of the most important cases to come through the Supreme Court we begin to understand better the dual role the court has played in American history.


In judicial history the first really important case heard by the court was Marbury v. Madison in 1803. This case is important because it established the importance of judicial review in the U.S. The power of judicial review is the most important power of the court, and it is a power which is fairly unique to the U.S. supreme court, although all nations have a judicial branch of government, not all nations have this power. Basically, the power of judicial review gives the court the power to cancel out laws passed by Congress or actions undertaken by the executive branch, by determining the constitutionality of laws and actions, the court can deem them to be unconstitutional and thus invalidate them. This power was not clearly specified in the Article III of the Constitution, and it was not until Marbury v. Madison that the power of the court was established.

Since then, the court has weighed on many important matters from the regulation of businesses (Swift & Co. v. U.S.), to freedom of speech (Schenck v. U.S.), civil rights (Brown v. Board of Ed; Loving v. Virginia), abortion (Roe v. Wade), legalization of drugs (Gonzales v. Raich) and the notion of "corporate persons" and the role of money in government (Buckley v. Valeo). As mentioned already it has tended to side more with business interests in cases regarding it, but has, at times, supported the civil rights of minorities. In other words, the court has tended consistently to support minority interests (whatever they may be) against the majority. That being said, at times, the court is not above prejudice e.g. the court's decision in Brown v. Board of Ed, contradict earlier decisions which affirmed segregation like Plessy v. Feguson (1896) or Dred Scott v. Sanford (1857) which denied the citizenship and even the humanity of African-Americans.

Of course the big issue now is that the Supreme Court has overruled Roe, in another case Dobbs v. Jackson Women's Health Organization. The abortion debate is a highly divisive debate in America, although evidence would suggest that the vast majority of Americans support the right to an abortion. It deals with many issues, like when does life begin? What obligations are women under to carry a pregnancy to full term? What are the socioeconomic considerations at play. Although a full in depth debate over these issues is beyond the scope of this class, it is important to at least weigh in on some of these issues. First, anti-abortion activists claim that life begins at the moment of conception. Any abortion then would be taking a life. However, traditional opinion has always held that a person's life begins when they are actually born (hence your birthday). Medical research would say that life does not begin until the life could be supported on its own, which in this case would be at 21 weeks. That would be over five months into a pregnancy. That is the earliest time, according to medical researchers that a fetus could conceivably survive on its own, although with significant medical assistance like respirators and things like that. Many anti-abortion laws that have already been passed by states outlaw abortion in some cases after six weeks, far earlier than what most medical research would it is possible to survive on its own. The question of when life begins is a philosophical issue, but at least in this case there is some scientific research behind this opinion.

Another thing to be considered are the potential health risks to women who give birth. The US leads the world in both maternal mortality and infant mortality, that is women and infants who either die while giving birth or shortly after, in the case of infants within the first year of their life. 

These disturbing statistics are extremely high for Native American and African-American women as well. In the opinion on Roe, one of the dissenting judges, Justice White, who did not agree with the majority speaks about the health risks and what he has to say is interesting. His dissent is not included in the online readings but can be found here

http://landmarkcases.c-span.org/pdf/Roe_White_Dissent.pdf 

He writes:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.

However, I think White falsely separates pregnancies into two categories: dangerous and safe. In fact, any pregnancy can be potentially dangerous, although there are factors that can make some pregnancies more dangerous than others.

The other factor to consider are the socioeconomic circumstances. More than 75% of women who receive an abortion at some point in their life would be considered low income, and most women cite financial reasons as the main reason why they feel unready to have children. The hypocrisy of those  who claim to be "pro-life" is that they are against any kind of social programs which would provide assistance to women and children. If they really cared they should support these programs which would not only lower the number of abortions but also decrease the number of maternal and infant mortalities.

There are of course many other aspects of this debate that are important but those are at least a few important considerations.

Since the Civil War, many of the court's decisions (including Roe) have relied on the 14th amendment, specifically, the due process and equal protection clauses:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The equal protection clause states that the same standards of law must be applied to everyone, and obviously laws that harm one group of people would fail the test created by the equal protection clause. The concept of due process is something inherited from British political institutions, dating back to the Magna Carta of 1215. The idea of due process states that government must have sufficient reason, and must follow established rules, before it can deprive an individual of their rights. In a modern context, the idea of due process can be broken down into procedural and substantive aspects. Procedural due process establishes formal rules followed by government, and includes things like a warrant to arrest or search someone's property must be obtained; before being charged with a major crime a person must be indicted by a grand jury; that individuals have a right to a trial by jury, that in turn must render a unanimous decision, all of these are procedural aspects of due process, as are prohibitions against torture and cruel and unusual punishment, especially as a means of gaining a confession. If authorities are to gain intelligence they must do through legal means.

However, as many like Gore Vidal have argued, with the war on terror, and legislation like the PATRIOT Act, supported by courts, the notion of due process is essentially hollow. Anyone suspected of being a terrorist can now be detained for an indefinite amount of time, with no contact with family, lawyers, or anyone, and can be tortured, or subjected to Orwellian sounding "enhanced interrogation techniques," including "whistleblowers" like Chelsea Manning and in all likelihood Julian Assange, if the Trump administration gets its hands on him.
https://www.youtube.com/watch?v=czD_4XUSIok

Procedural Due Process: Rules are followed

·      Warrants—4^th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

·      Due Process—5^th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

·      Trial by Jury—6^th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

·      No Torture—8^th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Substantive Due Process: Does the government have a good reason to deprive someone of liberty?

      Freedom of contract (Lochner v. New York)

·      Right to custody (Troxel v. Granville)

·      Right to privacy (Griswold v. Connecticut)

·      Right to marriage (Loving v. Virginia)

Most of the major Supreme Court cases are not about issues of procedural due process, but substantive due process, which asks whether or not the government has a good reason to deprive someone of their rights. In many cases, the Supreme Court has said no, and has defined more rights than originally specified in the Constitution, since the 9th amendment mentions "unenumerated" rights that are not named. In some cases, maybe, you want the court to say yes, like the issue of unlimited financing of political campaigns, or corporate ownership of public goods and services. Many of the rights we enjoy today are a result of rights implied by the Constitution, but defined by judicial review through concrete examples. The notion of substantive due process then guides the process of judicial review, which itself has a defined procedure it follows, applying "strict scrutiny" in only the most important cases:

When deciding on the constitutionality of laws, the judges apply what is called "Judicial Review." When they review a law, judges ask several critical questions to help them determine legality. Judicial Review can be broken down into different levels:

·     A. Rational basis review: Questions is the law “rationally related to a legitimate government interest”?

·      B. Intermediate scrutiny: Also questions government interest, but also if a law is based on substantial evidence. First used in cases of gender discrimination in 1976: https://www.oyez.org/cases/1976/75-628

· The highest level is:  
      C. Strict scrutiny: asks three questions the government must prove

1.     compelling government interest

2.     narrowly tailored for the goals of the law

3.     least restrictive means

Brown v. Board of Ed, Loving v. Virginia, and Roe v. Wade were all decided using strict scrutiny. 

The judicial branch continues to play an important role in protecting the rights of minorities (including business interests), however it does raise the question of whether the courts are too independent of the majority will, as argued by Jamal Greene. With life terms for federal judges and lack of accountability through elections it is relatively easy for the courts to ignore or defy popular will. The recurring question that will always be associated with the courts are what is the proper balance between the independence of the judges and the demands made by popular majorities?

Some of the major issues the court will now have to decide, will be the legality of DACA (Deferred Action for Childhood Arrivals), whose legal basis is Plyler v. Doe, and in the Equal Protection Clause of the 14th amendment. Other issues of concern: abortion, employment discrimination against LGBT people, gun rights, and  surveillance and policing over ordinary citizens. This is even more controversial given the circumstances of the appointments of Justices Gorsuch, Kavanaugh, and Barrett.

 Next class, we will talk about how lobbyists and social movements influence the political system.

The Presidency

Franklin Roosevelt is sometimes considered the first "modern" president because of the massive expansion in the power of the state under his administration. Although other Cabinet departments had been added to the government such as the Department of Agriculture created by Lincoln, the Department of Commerce in 1903, and the Department of Labor created during the Wilson administration, Roosevelt drastically increased the power of the president by enlarging the personal staff of the president, creating the first chief of staff and many other positions.

According to Richard Neustadt, in his book Presidential Power (1960), the power of the President is fairly limited, due to the checks and balances in the Constitution. Neustadt evaluates presidential power  by considering three different areas: 1) the President's ability to persuade, 2) his or her professional reputation among political insiders, 3) and the prestige the President has with the public, or popular support. Being stronger or weaker in any of these areas critically determines how much power the President has, or as Neustadt says:

Effective influence for the man in the White House stems from three related sources: first are the bargaining advantages inherent in his job with which to persuade other men that what he wants of them is what their own responsibilities require them to do. Second are the expectations of those other men regarding his ability and will to use the various advantages they think he has. Third are those men's estimates of how his public views him and of how their publics may view them if they do what he wants. In short, his power is the product of his vantage points in government, together with his reputation in the Washington community and his prestige outside. 
A President, himself, affects the flow of power from these sources, though whether they flow freely or run dry he never will decide alone. He makes his personal impact by the things he says and does. Accordingly, his choices of what he should say and do, and how and when, are his means to conserve and tap the sources of his power. Alternatively, choices are the means by which he dissipates his power. The outcome, case by case, will often turn on whether he perceives his risk in power terms and takes account of what he sees before he makes his choice. A President is so uniquely situated and his power so bound up with the uniqueness of his place, that he can count on no one else to be perceptive for him (Neutstadt p. 150).

How would Trump, Obama, or any other President rate according to these criteria? Are they able to persuade Congress and even their own Cabinets to act? Do they have a good reputation among other people of political influence? Are they popular? According to Neustadt, their overall power derives from these three factors. President Obama's greatest strength may have been his popularity, but in many cases he was unable to persuade the Congress to act, while many political insiders like Hillary Clinton publicly questioned his lack of experience. On the other hand, for legislative proposals he was able to get passed, if you examine the details of how these proposals were passed, the President's persuasive ability plays a great role, even meeting directly with members of Congress to persuade them to vote a certain way. Although insiders may have questioned Obama's lack of experience, on the other hand, he had a good reputation as far as personal ethics went, unlike the Clintons and many other career politicians. Finally, there is good reason to think failure to pass legislation really originates from the Congress' refusal to compromise with the President on most issues. Both interpretations seem credible in their own way. Perhaps, a more critical question would be how well did the President use his popularity, especially compared to past President like Theodore Roosevelt, Andrew Jackson, FDR, and even Lyndon Johnson in the mid 1960s?

Stephen Skowronek, in The Politics Presidents Make (1993), describes  "presidential cycles" in three parts: that establish "regimes," consolidate regimes, and destroy regimes, leading to another cycle. The idea of cycles, or regimes, suggest there are common features running through successive Presidents, that is, similar norms, values, and ideas.  In Skowronek's view there have been at least five presidential cycles beginning with Jefferson: The Jeffersonians, Jacksonians, Republicans, the New Deal, and the Reagan era. Within each cycle, President's perform the role of Reconstruction (starting the cycle), Articulation (strengthening the cycle), and Destruction (ending the cycle beginning a new one). FDR, for example, is seen as beginning the New Deal cycle, articulated by Lyndon Johnson's vision of the "Great Society" in the 1960s, which ended with the Carter administration of the late 1970s. The end of the New Deal cycle has led to a conservative cycle beginning with Ronald Reagan in 1981. George Bush I could be seen as articulating that cycle (or arguably even Bill Clinton since many of his economic ideas were conservative) and perhaps deconstructed with George W. Bush. This would presume that the Obama administration has begun a new cycle, however some would argue that the conservative Republican cycle has still not ended, given the power conservatives still have over politics. In this case, Obama would fit into the pattern similar to Clinton, or even Nixon during the New Deal era.

When Roosevelt ran for president, he was Governor of New York (Herbert H. Lehman, Roosevelt's Lieutenant, was then elected Governor of New York in 1932,  the college is named after Lehman––more infamously, the same family as the Lehman Brothers, formerly of Wall St.) Roosevelt advertised what he called his "Brain Trust" a collection of renegade intellectuals who analyzed data, did research, and created the policies that became known as the "New Deal," or new "social contract," between the public and government, leading to a much more active government, the modern welfare state. The FDR administration is known for its "first hundred days," where it created many of the institutions that defined the New Deal, less well known is the great expansion of presidential power in the late 1930s, especially as the U.S. begins to prepare for war with Germany and Japan.  In 1939, on its second attempt, The Reorganization Act is passed by Congress, giving Roosevelt the power to create additional federal offices. 

Once the president was given the authority by Congress, Roosevelt created several new offices within the executive staff, the Executive Office of the President (EOP), that forms the foundation of the modern White House Office (WHO) today. The executive office is headed by the Chief of Staff who runs the day to day affairs of the president and in many cases controls access to the president. Also, an earlier version of today's Office of Management and Budget (OMB) was created to oversee the expenses of the executive branch in the budget, as well as earlier versions of the National Security Council (1947) and the Council of Economic Advisors (1946). 

In all of these cases, offices were to be staffed with scientifically trained officials, overseeing the complex functions of the government. These offices, along with the office of the Vice-President, are "Cabinet-level," equal to Cabinet department. In many cases, presidents have come to rely on the advisors in the EOP more than the Cabinet. Since then, more executive offices have been created like the Office of the Trade Representative (1962); Office of Environmental Quality (1969); and the Office of National Drug Control Policy (1989), as well as others.

After FDR was elected for a completely unprecedented four terms, many began to fear the growing power of the President. The 22nd Amendment was introduced in 1947 and ratified in 1951, explicitly limiting the number of terms a president could serve to two–or a maximum of 10 years if they assumed office as a Vice-President. In between this time, the Republican Party once again came to dominance which culminated the following year when Dwight Eisenhower (1953-1961), the Allied Commander during World War II, was elected President. Despite briefly winning Congress in 1952 when Eisenhower is elected, by 1954 Congress was still in Democratic control again, and would remain so for decades. 

The major issue of the election was foreign affairs, specifically the threat of Soviet Communism. During World War II, U.S. propaganda referred to Soviet dictator Joseph Stalin as "Uncle Joe" when the Russians were allies against the Germans. After the defeat of Nazi Germany in 1945, a new conflict emerged between the U.S. and the Soviet Union over the fate of Germany and the rest of Europe. By the end of the 1940s, the conflict had extended throughout the world. It is after this period of time that the U.S. begins to transition into the role of global superpower, a reversal of its traditional non-interventionist, or isolationist, position throughout most of its history dating back to George Washington's administration. The shape and design of many international institutions today are clearly influenced by the U.S. political system, as is the still vague notion of "international law." This has created impressive new challenges to balance the requirements of democratic government with the sensitive nature of geopolitical affairs. In many regards, the demands of specialized technical knowledge has only increased the distance between the government and the public.

The most traditional role the President has is dealing with foreign nations, especially the command of the military, or "commander-in-Chief." In the post-war era, the Presidency took on the role of maintaining global order.


 In 1950, the Korean War began after communist North Korean (supported by China and the Soviets) forces overran the South. The U.S. intervened. This was the first war the U.S. fought since World War II, only five years later. The war turned into a stalemate, after China and the United States both entered the war against each other. The inability to resolve this conflict, contributed to the Democrats' defeat. In 1953, under Eisenhower, a ceasefire was signed, today North and South Korea are still separate. 3-4 million North and South Koreans are estimated to have been killed, and approximately 1 million Chinese soldiers, in what was only a preview of the devastation in East and Southeast Asia in the ensuing decades.

 During World War II, Japan conquered the colonial empires of the British and the French in the Pacific and Southeast Asia. The unintended consequence of this created nationalist movements in these countries, fighting, first, the Japanese, and later the European colonial empires. The most important French colony was Indochina. France claimed a right to rule after the war, until 1954 when communist forces in Indochina under Ho Chi Minh defeated the French, leading to the province being split into different countries: Cambodia, Laos, and most notably North and South Vietnam. The French appealed to the U.S. for assistance, filling the void of the departing French. The U.S. tried supporting the South Vietnamese government, until 1963, when the CIA ordered the leader of South Vietnam, Ngo Dinh Diem, to be overthrown, and eventually murdered. The US took direct control over the war (20 days later President John F. Kennedy was assassinated in Dallas, Texas).

In the 1960s, the conservative movement started to reassert itself after its devastating losses in the 1930s and 1940s. What had happened to the Republican Party in the 1930s was similar to the Democratic Party in the 1860s after the Civil War. It became so identified with something so negative (slavery, or causing the Great Depression in this case) that it took literally decades for it to repair the damage to its image. In the 1950s, a Republican president reigned, but Eisenhower had adopted virtually every major program introduced by the New Deal. It was under Eisenhower the first school desegregations were ordered, like Little Rock, Arkansas in 1954. In 1964, the Republicans ran Arizona Senator, Barry Goldwater against Lyndon B. Johnson (1963-1969), Kennedy's former Vice-President, and someone who modeled himself after FDR, even calling himself LBJ. Johnson won in one of the biggest landslides in American history. 

1964 U.S. Presidential Election

At the time, in American political culture, there was a strong commitment for social welfare policies and programs for the poor. Programs like Medicare and Medicaid were created under the Johnson administration as well as the new Cabinet Department, the Department of Housing and Urban Development (HUD). Johnson also presided over the passage of the Civil Rights Act of 1964, outlawing legal segregation and the Voting Rights Act of 1965. Trump's HUD Secretary Ben Carson had this exchange with Congresswoman Katie Porter over the conditions in public housing. 

https://www.youtube.com/watch?v=sVWy3q2kmNM

Along with these landmark legislative acts, the "Civil Rights" Amendments were passed in the Constitution:

• 23rd Amendment (1961): Allows Washington D.C. to vote for president which previously had no representation in the electoral college.
• 24th Amendment (1964): Prohibits a poll tax, literally a fee paid to vote used especially in the South.
• 25th Amendment (1967): Establishes the presidential line-of-succession, like the 20th and 22nd amendments, this amendment reflects the growth of executive power and its importance.
• 26th Amendment (1971): Passed during the height of the Vietnam War, this amendment lowers the voting age to 18 from 21.

Three of these Constitutional amendments deal with the crucial issue of the right to vote in a democracy which was also the focus of the Voting Rights Act of 1965. However, electoral laws are mainly decided by the state, and there has recently been a determined effort by many Republican governors of states like Florida to "purge" registered voters from the voting lists and thus take away their right to vote under the pretext of preventing "voter fraud." It might seem strange that a party that claims to be working in the interest of the majority of people would put so much effort into reducing the number of eligible voters, and many liberals have argued this is an attempt to undermine the Voting Rights Act.

After Kennedy's suspicious assassination in late 1963, plans were set in motion to start the war in Vietnam in 1964, a fake assault on U.S. naval vessels in the Gulf of Tonkin was used as a justification.

https://fair.org/media-beat-column/30-year-anniversary-tonkin-gulf-lie-launched-vietnam-war/

 By 1968, over 500,000 U.S. military personnel were in Vietnam. The combined stresses of Johnson's spending on domestic social programs and foreign wars, creates inflation, and confidence in the dollar declines worldwide.

The United States became the dominant economic power in the world after World War II. At one point, responsible for almost half of the world's entire industrial output. 

This was the material basis of the so-called "Baby Boom" in the United States, reaping the full benefits of U.S. post-war prosperity in the 1940s, 50s, and 60s. It is during this period of time, with the assistance of Hollywood movie magic, the mythical image of the American way of life is created. Always a suburban fantasy to a large extent, as many older American cities showed significant signs of decay by the 1960s. Of course, it was basically only a fantasy for white men as well. Often unacknowledged is the super prosperity of the U.S. during this time was due to other major industrial powers of the world rebuilding from World War II. The two most dominant industrial powers besides the U.S., before World War II, were Germany and Japan. By the late 1960s, and especially in the 1970s, exports from these countries were eroding U.S. economic power. Arguably, the U.S. has never recovered from this and has pursued a series of artificial means of preserving itself largely through uncontrolled deficit spending, both public and private.

Trade Statistics 1930-2005
Bureau of Economic Analysis

The public assassination of John F. Kennedy in 1963, was echoed by the deaths of Martin Luther King Jr. and Robert F. Kennedy, the brother of John, assassinated in April and June 1968.

Robert Kennedy had been the favorite in the upcoming Democratic primary for the election in November. Instead, they nominated pro-war Hubert Humphrey. Republican Richard Nixon was elected president in 1968, and re-elected again in 1972, although the illegal tactics used during his re-election, such as Watergate, would lead to his downfall and resignation in 1974, the only president so far to resign in office. 

A major factor was that after 1964, the Democratic party largely lost the Southern vote to Republicans. The Democrats had been a force in the South since the founding of the party in the 1790s. Johnson reportedly remarked as he was signing the Civil Rights Act in 1964, "we have lost the South for a generation." Many have accused Nixon and other Republican presidential candidates as playing to Southern racism without being explicit about it, sometimes called "symbolic racism" or "institutional racism."

1968 U.S. Presidential Election
George Wallace was a segregationist third party candidate

In 1968, Nixon had won the Republican primary against a number of challengers including Ronald Reagan, the Governor of California. After three attempts, Reagan would be elected president in 1980, thus signaling a backlash against the progressive values of the 1960s and 70s.

The Reagan administration was defined by the phrase "government is the problem" and tried to eliminate most government regulations of business. Despite claims to reduce the deficit, the budget deficit of the federal government tripled through the decade, along with an increasing trade deficit growing rapidly since the 1970s. 

The budget deficit grew largely because of a combination of increased military spending and significant tax cuts given to the highest income brackets in the country. Reagan was later forced to reverse many of these tax cuts and ended up raising taxes several times.  Much of the increased military spending was used to finance covert wars in Latin America and the Middle East, but also to "outspend" the Russians on defense, a process that some believe helped pushed the Soviet Union into its downward spiral.

The trade deficit continued to grow in the face of competition from Germany and Japan after the 1960s, and the inability of major U.S. corporations like General Motors to adapt and innovate their product designs, as well as decreasing quality in the automobiles, compounded by multiple Arab oil embargoes in 1973 and 1979. Despite advances in several high-tech U.S. industries revolving around the emerging computer industry in the 1980s, the U.S.'s overall trade deficit continues to rise even today. This did not prevent President Reagan from winning the largest landslide in American history, over a weak Democratic party, still haunted by its past. Despite this, the House of Representatives maintained a Democratic majority throughout the entire Reagan administration. The Senate was recaptured for the first time in 30 years by the Republicans in 1980, but reverted back to Democratic control in 1986 after numerous Reagan scandals. It was not until 1994 when Republicans were able to take both houses of Congress and hold on to them for more than one election.

1984 U.S. Presidential Election

The U.S. economy grew during the Reagan administration, but the distribution of the wealth is concentrated in fewer hands. Poverty increased during the Reagan administration at the same time in which scandals emerged over Reagan's administration misallocating funds for the poor (literally stealing from the poor to give to the rich) and secret funding of right-wing "contras" in Nicaragua. Many commentators pronounced the return of the "Gilded Age." 

Robert Reich, former Secretary of Labor under Bill Clinton (1993-2001)
The chart is meant to show that even though economic productivity increased in the 1980s, the actual wages of working people did not keep pace with this change. Also, that productivity was greater during the social welfare period of the New Deal and that wages and incomes raised in proportion with the increase in productivity

In 2008 the biggest stock market crash since the Great Depression occurred resulting from financial speculation in the U.S. housing markets. This was in large part a result of the "deregulation" of the financial industry beginning in the 1980s, overturning laws established in the 1930, but it was the repeal of legislation separating commercial and investment banks, signed into law by Bill Clinton, that many economists argue greatly increased the magnitude of this crisis. Unlike the Great Depression which began in the middle of a Republican administration and helped to discredit the Republicans for more than 40 years, this one exploded, or was timed to explode, shortly before a presidential election, the 2008 election which saw the election of Barack Obama. 

2008 U.S. Presidential Election
"Battleground" states are states that do not have either a solid Republican or Democratic majority
In many regards the divisions into North and South regions still exists

President Obama tried to adhere to a "consensus" approach to politics which produced mixed results at best. Much like Jefferson, another controversial figure of his time, appeals to the unity between Federalists and Republicans, Obama has in many of his speeches appealed to common sentiments between Democrats and Republicans. However, unlike Jefferson whose party came to dominate politics in America, the Obama administration did not have a clear majority in Congress (at least since 2011). As a result, he has had great difficulty in getting legislation passed, although, despite this opposition, some of the signature legislation passed during this time were the economic stimulus program in 2009 that supporters argue helped avert another great depression, the Dodd-Frank bill that provides some limited oversight and regulation of the financial industry, and the Affordable Care Act, more commonly known as "Obamacare." The ability of Congress to limit the President is a function of the system of checks and balances, as intended in the Constitution, but as critics have pointed out, often this system creates paralysis in government. 

President Obama, for obvious ideological reasons, seeks to portray himself in the lineage of Jefferson and Lincoln. Obama addresses the issue of race in a way Lincoln never could by drawing upon his own experiences with racism, especially as a child of mixed race who has insight into the attitudes of whites and blacks, in his speech on race, considered by many to be his best speech. 

As most Democrats look to the New Deal era of FDR and LBJ as the high-point of the Democratic party in the modern era, he has tried to expand upon these policies. Most notably, healthcare which Roosevelt declared was a right, and advanced by Johnson who established Medicare and Medicaid. The current president has also kept in place the coercive and surveillance apparatus created during the Bush administration to fight the "war on terror."

Although winning the election of 2012, it is obvious that the Obama administration has been unable to achieve the massive victories that other Presidents were able to, notably: FDR, LBJ, Nixon and Reagan. Note also the similarities between the election results of the previous election, and the changes in certain "battleground states." Although President Obama has presided over one of the most polarized presidential administrations, it is likely the incumbent after the 2016 election may face an even more embattled presidency, as the intense political and social antagonisms that run through American life, and reflected in its government, show no signs of relaxing.

After the 2016 election, what lessons can be drawn? If we think of each election as a specific outcome, what explanations or what causes can we find that gives us a clear understanding? First, racism, sexism, homophobia, and bigotry in general play a role in every election. If you look at the number of votes, less people voted for Trump than voted for Mitt Romney or Bush in 2004, so the notion of a white backlash might not be as strong as people think, the real question is why did so few people vote for Hillary Clinton? As we all know, Trump lost the popular vote, and both candidates failed to get a majority of the popular vote (about 48% each). Trump won in many Mid-West states that have been particularly hard hit by economic policies over the last 20-30 years, and many feel it was Trump's vague promises of bringing jobs back that won his support even among unionized workers who normally vote Democratic and who voted for Obama in 2008 and 2012 (Clinton won just over half of union workers). Trump also did surprisingly well among minority voters, "According to exit polls, Trump lost Hispanics 65–29, besting the performance of the mild-mannered and courtly Mitt Romney, who, despite being about as likely to utter an ethnic slur as Pope Francis, lost Hispanics 72–27." 

https://www.usatoday.com/story/news/politics/elections/2016/2016/11/09/hispanic-vote-election-2016-donald-trump-hillary-clinton/93540772/

To get almost 30 percent of the vote is pretty astounding considering Trump's racial rhetoric. Also: 

"With blacks, exit polls show Trump claimed 8 percent of the vote to the previous Republican nominee's 6 percent.

That means Trump — who called Mexicans "rapists" and "killers" — garnered more support from Hispanics than a candidate whose most controversial position was telling undocumented immigrants to "self-deport."

Trump has frequently linked blacks to "inner city" slums and crime at rallies. Yet he performed better among African American voters than a considerably more moderate Republican nominee."

https://www.nbcnews.com/storyline/2016-election-day/trump-did-better-blacks-hispanics-romney-12-exit-polls-n681386

The electoral college also amplifies the influence of certain states and regions of the country, and so by losing all those industrial states, Clinton lost just enough electoral votes to put Trump over the top, even though again as in 2000 winning the popular vote. Voter suppression in states like Florida and North Carolina most likely played a role as well. Democracy Now states that almost 900 polling places were closed between the 2012 and 2016 election, making it harder to vote, increasing the wait time at some places, as well as other restrictions designed to make it harder to vote. I think the lingering question though, is what would have happened if Bernie Sanders ran against Trump, would he have won? 

After two years, Trump got his Muslim ban through the courts. His immigration policy is being carried out every day, something carried on under Democrats as well. He has pushed through another massive tax cut with no public debate. He has had little resistance in Cabinet, judicial, or other appointments. The now filled Supreme Court has already made several decisions restricting civil, political, and social rights. He made the Democrats cave in over funding the government without providing funding for DACA. Many Democrats voted for his appointments, his tax bill, and lifting regulations on banks, as well as increases in military spending (which would be affected by a government shutdown). 

With all this talk of a border wall, it should be pointed out that both illegal border crossings from Mexico has dropped dramatically over the last two decades, so has legal immigration. Recently, the issue of immigration has shifted more Mexico to Central American states (or as Fox News calls them "Mexican states"). Countries like El Salvador (70,000 dead) Guatemala (200,000) and Nicaragua (30,000) were absolutely devastated by US foreign policy in the 1980s under Reagan, and the economic policies of the IMF, resulting in civil war and the deaths of almost a million people throughout Latin America. Most "illegal" or undocumented immigrants are people who have overstayed on their visas, and thus entered legally, that and the strong decline in border apprehensions, completely undermines the whole narrative of people sneaking across the border, regardless of nationality. 

https://www.migrationpolicy.org/article/mexican-immigrants-united-states

After the 2020 election, Trump continues to call the election stolen, even instigating a riot at the Capitol in January.

After less than a year in office, the Biden is already struggling to maintain its approval, which has already declined significantly. The Democrats have already compromised themselves on many campaign promises like the minimum wage and student loan debt. The much talked about reform bill has drastically shrunk to appease conservative Democrats in the Senate. 

https://www.wsws.org/en/articles/2021/10/29/pers-o29.html

As in 2016, Trump did fairly well among Hispanic voters, although this goes against the media's racial framing of this, and all other political issues in the US.

https://www.politico.com/news/2021/06/30/new-trump-poll-women-hispanic-voters-497199

Total deaths from COVID-19 now stand at around over a million with almost half of these deaths during the Biden administration. Somehow, the mainstream media and the Democrats believe that Biden has been effective at dealing with COVID, even though the US continues to lead the world in deaths. 

Next class, we will talk about the judicial branch.