#Step Six: New National Powers Changed Federalism – Grants-in-Aid

❖ Grants-in-Aid:
➢ In the 1930s, the federal government gained the power to distribute money to the
states through grants-in-aid.
➢ The federal government provides funds to states for various purposes, but there
are strings attached.
❖ Federal Rules Compliance:
➢ States must comply with federal rules in order to receive these funds. This
system expanded federal influence over state policies.
❖ Case Study: Drinking Age:
➢ Why is the drinking age 21 today when it was 18 in the past?
■ In the 1980s, the Reagan administration linked raising the drinking age
to 21 with eligibility for federal transportation grants.
■ This effectively forced states to comply, showing how federal money can
undermine state control over laws such as drinking age regulations.

#A Very Different State/Federal Relationship, 1789–2020

➔ States Less Powerful Than Framers Expected:

◆ The states have much less power than the Framers of the Constitution initially
intended.
➔ National Government More Powerful Than Expected:
◆ The national government has become far more powerful, exerting significant
control over various aspects of governance that were once state-dominated.
➔ States Retain Some Independent Authority:
◆ While states have lost considerable power, they still maintain some independent
authority and flexibility, especially in specific policy areas like marijuana
legalization (as shown in the map).
➔ Not What the Framers Envisioned:
◆ This current balance of power is very different from what the Framers originally
envisioned when drafting the Constitution.
➔ Transformation of the Constitution:
◆ Over time, we have adapted the Framers' Constitution to fit the needs of our
modern government, marking a clear shift in how power is distributed between
state and federal governments.

#Federalism Today: A Return to States' Rights?

● Conservative View on Federal Power:

○ Many conservatives today believe that the national government is too
powerful.
 ○ They argue that the federal government should have limited regulation over
businesses.
○ Conservatives also believe the federal government should have less influence
over civil rights issues.
● Desire to Return Power to the States:
○ There is a strong push among conservatives to return most power to the
states, rather than leaving it in federal hands.
● Supreme Court Decisions:
○ Recent Supreme Court rulings have often supported the idea of states' rights,
particularly in areas like abortion rights.
● Political Support:
○ All current Republican presidential candidates share the belief in stronger
state authority, except in some personal matters like abortion.
● Ongoing Debate:
○ The tension between federal and state power remains a continuing issue in
U.S. society, with ongoing debates about the appropriate balance between the
two.

#Changing Enforcement of Civil Liberties Enhanced Federal Power

● Civil Liberties:
○ Civil liberties are rights that the government is not supposed to interfere with,
including individual rights such as speech, religion, press, and fair trial.
● Context and Reminder:
○ The Bill of Rights initially restricted the federal government from interfering
with civil liberties but did not apply to state governments.
● Dual Federalism and Civil Liberties:
○ During the era of dual federalism, states had freedom to enforce or regulate
behavior regarding civil liberties as they saw fit, resulting in great variety in the
application of these principles.
○ This situation didn’t change until the 14th Amendment was passed in 1868,
which began to apply civil liberties protections to state actions as well.
● Growth in Federal Power:
○ The growing enforcement of civil liberties by the federal government
significantly enhanced its power, reducing the states’ ability to regulate certain
rights independently.

Treatment of Civil Liberties Changes Over Time

● Shift Toward National Standard:

○ Over time, there has been a general shift toward a national rule on many civil
liberties issues.
○ People began to recognize that it was not “equal” to have different states
providing different rights to their citizens, at least in some areas.
 ● 14th Amendment and Selective Incorporation:
○ The 14th Amendment made possible the process of selective incorporation,
which requires states to follow the Bill of Rights and protect civil liberties in
certain cases.
○ This process ensured that states could no longer ignore or violate certain
fundamental rights protected by the federal government.
● Role of the Supreme Court:
○ Typically, someone sues a state claiming their civil liberties have been violated.
○ These cases often make it to the U.S. Supreme Court, which rules on the
matter.
● Precedent Setting:
○ When the Supreme Court rules on such cases, the decision sets a precedent,
establishing how courts should interpret and rule on similar cases in the future.
○ This means that the entire nation must follow the established legal precedent,
further standardizing civil liberties across all states.

#Why Go to Court?

● Challenging Existing Laws:

○ People or groups typically go to court to challenge existing laws or claim that
certain practices, such as prayer in school, violate their rights.
● Marbury v. Madison (1803):
○ This landmark case established the doctrine of judicial review, which gives
courts the power to overturn laws they find unconstitutional.
○ It significantly enhanced the role of the judiciary in shaping the application of
laws and limiting government overreach.
● Forcing Desired Changes:
○ Courts provide a legal mechanism to force change, allowing individuals or
groups to challenge and alter laws they disagree with or that infringe on rights.
● National Power Applied to Local Issues:
○ Court decisions often result in the application of national power to issues that
have historically been handled at the local or state level, further centralizing
authority.

#States and Religion: Examples of State-Level Religious Policies

● Mandatory Prayers in Schools:

○ Some states required prayers in public schools, raising issues about the
separation of church and state.
● Sunday Business Closures:
○ Many states had laws mandating businesses to close on Sundays, reflecting
religious observance (often Christian).
● Pacifists and Draft Laws:
 ○ During wartime, states have drafted or imprisoned Amish and other pacifists
who refused military service on religious grounds.
● Employment and Religious Practices:
○ States allowed for the firing of individuals, like Jews and Seventh Day
Adventists, for refusing to work on Saturdays due to religious observance.
● Blue Laws:
○ These laws regulated activities on Sundays, including alcohol sales and banning
the playing of games (e.g., Sunday baseball) to uphold religious values.
● State Discretion in Defining Religious Freedom:
○ States historically had broad discretion in defining what “religious freedom”
meant, leading to varying interpretations and policies across the country.

#Historical Bias Against Mormons: A Case Study

● Founding of the Mormon Church:

○ The Mormon Church was founded in 1830 in New York by Joseph Smith. The
Mormons later moved to Ohio, Missouri, and Illinois due to persecution.
● 1838 Missouri Extermination Order:
○ In 1838, the Governor of Missouri issued an order for Mormons to be
“exterminated” or expelled from the state. The Mormons moved to Nauvoo,
Illinois.
● Violence and the Death of Joseph Smith:
○ Joseph Smith was killed in Illinois in 1844, as violence between Mormons and
locals persisted.
● Move to Utah Territory:
○ The Mormons eventually migrated west, settling in Utah Territory, where they
admitted to practicing polygamy.
● Polygamy and Legal Intervention:
○ The U.S. Supreme Court banned polygamy in 1878, further limiting religious
practices.
● Statehood and Polygamy Ban:
○ Utah became a state in 1896, and the Mormon Church officially banned
polygamy in 1904. However, some sects of the church continued the practice.

#"Nationalizing" Civil Liberties: The Establishment Clause

● Mandating Religious Practice in Public Institutions:

○ A key question arises: Is it acceptable for a state to mandate religious
practices in public institutions?
● Case Example: New York's Mandatory School Prayer:
○ New York required students to recite a prayer at the start of the school day:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers, and our country. Amen.”
● Engel v. Vitale (1962):
 ○ The Supreme Court ruled that teachers and other state "agents" cannot
compel religious observance or endorse religious practices as part of their public
role.
● Lemon v. Kurtzman (1971):
○ The Court developed the "Lemon Test," which established the following principles
for state involvement in religious matters:
■ The state cannot intend to promote a specific religion.
■ The state cannot compel support for a particular religious belief.
■ This decision led to what is sometimes called the "reindeer rule"
(referring to the placement of religious symbols alongside secular
symbols to avoid promoting one religion over another).

#"Nationalizing" Civil Liberties – The Free Exercise Clause

● Key Questions: Is it okay for states to...

○ Ban polygamy?
○ Prevent the use of psychedelic substances in religious ceremonies?
○ Compel gender equality in religious organizations?
○ Punish pacifists for religiously motivated resistance during times of war?
○ Compel parents to seek medical treatment for children, even if their religion tells
them not to?
● Historical Variability:
○ There used to be a wide variation among states on how they handled these
issues, leading to differing interpretations of free exercise across the country.
● Compelling State Interest:
○ When can the state interfere with religious practices?
■ If there is a compelling state interest, such as:
■ Danger to the community.
■ Unbalanced rights (e.g., polygamy, drug use in ceremonies,
gender equality issues, religious pacifism, or medical care for
children).
■ In these cases, the state can override religious freedoms to protect
broader societal interests.
● Default Position:
○ The legal default is to favor free exercise of religion, but this freedom has limits
when it conflicts with compelling state interests.
● Note: The interpretation of the Free Exercise Clause is changing, with evolving legal
standards on how free exercise interacts with state authority (to be discussed further).

# Recent Cases and a Twist in "Free Exercise"

● Burwell v. Hobby Lobby (2014):

 ○ Question: Can a privately-owned business be compelled to provide healthcare
policies that include provisions its owners object to on religious grounds?
○ This case arose from the Obamacare mandate, which required large employers
to provide healthcare policies that covered birth control.
○ The Supreme Court ruled that the religious rights of the company's owners
were recognized, allowing them to opt out of certain national healthcare rules
based on their religious beliefs.
● Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018):
○ Question: Can a business owner deny services to someone based on religious
beliefs?
○ The case involved a bakery owner who refused to make a wedding cake for a
same-sex couple, citing religious objections.
○ The Court ruled in favor of the bakery owner, but the decision was based on a
procedural issue rather than a broad principle, leaving uncertainty about future
cases.

#Four Recent Cases: A Twist in "Free Exercise"

● Fulton v. City of Philadelphia (2021):

○ The city of Philadelphia refused to work with Catholic Social Services (CSS) in
adoptions because CSS would not allow same-sex couples to foster children.
○ CSS sued, claiming this violated their religious freedom.
○ The Supreme Court ruled 9-0 in favor of CSS, supporting their religious rights
over the city's policy.
● 303 Creative v. Elenis (2023):
○ Question: Can a business discriminate against LGBTQ individuals on religious
grounds?
○ In this case, a web designer refused to design a website for a same-sex wedding,
citing religious objections.
○ The Supreme Court ruled in favor of the web designer, protecting the right to
refuse services based on religious beliefs.
● Key Takeaway:
○ The Court seems to have ruled that "free exercise" includes the right to
discriminate if the basis of that discrimination is rooted in religious beliefs.

#"Nationalizing" Civil Liberties – Freedom of Speech

● Can States Regulate Speech?

○ The regulation of speech has been a major power claimed by states and the
federal government.
○ There is a long history of substantial regulation in the U.S.
● Historical Acts Regulating Speech:
○ Alien and Sedition Act (1798):
■ Made it effectively illegal to criticize the government.
○ Comstock Act (1873):
 ■ Banned pornography and offensive materials from being sent through
the mail.
■ Resulted in wide state variation regarding access to adult materials and
had significant effects on the media industries.
○ Espionage Act (1917):
■ Prohibited actions that undermined the war effort or promoted
anti-government beliefs, including socialism and communism.
● Supreme Court Rulings on Free Speech:
○ Schenck v. US (1919):
■ Established the “clear and present danger” test for limiting speech.
○ Brandenburg v. Ohio (1969):
■ Narrowly defined hate speech protections under the First Amendment.
○ Expressive/Symbolic Speech:
■ The Court ruled on cases involving expressive or symbolic speech:
■ Cohen v. California (1971): Protected expressive speech.
■ Texas v. Johnson (1989): Upheld the right to burn the American
flag as symbolic speech.
■ Morse v. Frederick (2007): Limited students' free speech rights at
school events.
○ Political Speech:
■ Political speech has been the least regulated type of speech.
■ Citizens United (2010): The Court ruled that corporations and unions can
spend unlimited money on political campaigns, enhancing free political
speech.