Module 1

The Constitutional Underpinnings

Enlightenment PhilosophiesThe framers lived during a time when new ideas about government were developed

Thomas HobbesLeviathanArgued humans left

to own devices would create chaos and violence

Best way to protect life was to give total control to the monarch

John LockeSecond Treatise on

Civil GovernmentLiberty and property

need to be respectedNatural rights: life,

liberty, and property were granted by God

Duty of all governments to protect these

Charles de MontesquieuDe l’Esprit des Lois

(The Spirit of Laws)Advocated that

government be separated in three branches and the separation of power among those branches

Jean Jacques RousseauOnly good

government was one that freely formed with the consent of the people

Shown as a “social contract,” that was an agreement among people.

VoltairePen name (Francois-

Marie Arouet)CandideStrong supporter of

individual freedoms and freedom of speech.

The Weakness of the Articles of Confederation 1774-1781Our first government of the United States

Established the methods by which new states would enter the Union

Negotiated the treaty that ended the Revolutionary War

Set the precedent of federalism, where the states and central government share governing responsibilities

Accomplishments of the Articles of Confederation

By 1787, decline in trade between the statesValue of money droppingThreats from foreign enemies growingReal threat of social disorder from groups

within the country

Weaknesses : Unable to solve growing problems

1,000 armed farmers attacked a federal arsenal to protest the foreclosure of farms in western Massachusetts.

Major concern at Constitutional Conventionyear

Shay’s Rebellion

Could not raise an armyWas completely dependent on the state

legislatures for revenue- no ability to taxCould not pay off the Revolutionary War debtCould not control interstate tradeHad no Supreme Court to interpret the lawsHad no executive branch to enforce national lawHad no national currencyHad no control over import and export taxes

imposed between the states.

Federal Government Under the Articles of Confederation

James Madison convinced the other delegates that is was too difficult to amend the AOC and a rewrite was in order

The result of the convention was the United States Constitution and we call it the Constitutional Convention 1787

Deficiencies direct cause for calling a convention

The Constitutional ConventionPhiladelphia 1787

Divided over appropriate power and responsibilities of governmentState’s Rights v. strong central governmentIntrusion on the lives of individual citizens

General view of historians Framers were pragmatistsThey knew protecting everyone’s property and

rights meant protecting their ownA few historians believe the convention was

an elitist conspiracy to protect the wealth of the rich

Our Old Debate and Our Current Debate

Agreed in necessity of a strong central government BUT were fearful of the corrupting influence of power

Central theme of the convention was how to control this!Virginia Plan- large statesNew Jersey Plan-small states

OutcomeThe Great Compromise

Bicameral legislature

Representation of slaves (3/5ths Compromise)

Delegates Worked out Solutions

Designed a chief executive or president to enforce the laws

President a check on the legislature.Before a bill becomes a law the president must

approve itPresident has the power to veto acts of Congress

Presidential power is not absoluteCongress can override a veto2/3rds of both houses to do it! Remember this!

Created Supreme Court to arbitrate disputes between the two branches, states, and states and the central government

Delegates Worked Out Solutions

FederalistsAlexander HamiltonJohn JayJames MadisonWrote Newspaper Articles

supporting the constitutionCollection of essays called

the Federalist PapersPrimary source for

understanding the original intent of the framers

Centered on lack of Bill of Rights

Once Federalists guaranteed this, opposition diminished enough for ratification

Ratification

Anti-Federalists

Read it in your Annual Editions Book Article3Highlight any vocabulary you don’t

understandRead it againLook up some background information on this

paperWhy would it be a good primary source for

you to start the school year off reading? Post to the wiki before class on Friday.

Federalist Paper #10

The Living ConstitutionThe blueprint for the structure of government and a guide for guaranteeing the rights of citizens

It breathes!

Article 1, Section 8Allows Congress to “make all laws” that

appear “necessary and proper” to implement its delegated powers.

Also known as the elastic clauseFor example,

The Federal Reserve SystemCabinet for executive branchFederal District Courts and the Courts of

Appeals

Necessary and Proper Clause

Has expanded executive powerExecutive orders have the same effect as law, bypass

Congress in policy making and are not mentioned in the Constitution.

Presidents use them as part of the enforcement duties of the executive branch.

Executive agreements between heads of countries have many of the same elements as treaties. They also bypass the ratification power of the Senate but are not in the Constitution.

Use of the Oval Office and the media as a communication link directly to the electorate were never anticipated by the Framers.

Presidential Practice

Examples of Executive Practice

Supreme Court drastically increased its own power by granting itself power to overturn laws passed by the legislature known as judicial review.

Details:

Marbury v Madison 1803

Examples:Political Party System

Organization, technology and fundraisingCreated from custom and usage

Rules used in Congress

Custom and Usage

FederalismA system of government under which the national government and the local governments (state governments) share power. Some powers belong exclusively to the national government, some exclusively to the states and some are shared by both.

Other federal governments: Germany, Switzerland, and Australia

These powers belong to the national government only

ExamplesPrinting moneyRegulating interstate and international tradeMaking treaties and conducting foreign policy Declaring war

Delegated or Enumerated Powers

Powers that belong exclusively to the statesAccording to the 10th Amendment, these

powers include any that the constitution does not either specifically grant to the national government NOR deny to the state governments.

Examples:The power to issue licensesThe regulation of intrastate businessesThe responsibility to run and pay for federal

elections

Reserved Powers

Powers shared by both state and federal governments

Examples:Collect taxesBuild roadsOperate courts of lawBorrow money

Concurrent or Shared Powers

Federal Government

Suspend the writ of habeas corpus (which protects against illegal imprisonment), except in times of national crisis

Pass ex post facto (retroactive) laws or issuance of bills of attainder (which declare an individual guilty of a capital offense without a trial

Impose export taxesUse money from the treasury without the

passage of and approval of an appropriations billGrant titles of nobility

Specific Powers Denied in Constitution

States do not have the power to:Enter into treaties with foreign countriesDeclare warMaintain a standing armyPrint moneyPass ex post facto (retroactive) laws or

issuance of bills of attainder (which declare an individual guilty of a capital offense without a trial)

Grant titles of nobilityImpose of import or export duties

Specific Powers Denied in Constitution

Federal government must guarantee the states a republican form of government and protection against foreign invasion and domestic rebellion

Federal government must prevent states from subdividing or combining to form new states without Congressional consent.

States are required to accept the court judgments, licenses, contracts, and other civil acts of all other states: this obligation is contained in the full faith and credit clause.

Obligations in the Constitution

States may not refuse police protection or access to their courts to a US citizen just because he lives in a different state (found in the privileges and immunities clause)

States usually must return fugitives to the states from which they have fled. This is call extradition.

The supremacy clause – conflicts between federal law and state law are to be resolved in favor of federal law.State laws that violate the Constitution, federal

laws, or international treaties can be invalidated.

Obligations in the Constitution

1st part of our history: dual federalismState and federal gov’ts remained separate and

independent.Contact with gov’t on state levelFederal gov’t primarily on infrastructure and

international trade issuesState’s Rights v. Nationalists

Most federal programs administered through states

Federal pays states“Strings or no strings!”

Nature of Federalism

Grants-in-aid (outright gifts of money)Categorical grants (has strings attached)Block grants (no strings, gives states broad

powers)Other techniques to get states to do what the

federal government wantsDirect orders and preemption to force states to

abide by federal lawCrossover sanction which requires a state to do

something before the grant will be awardedExample: raise drinking age to 21 before federal

highway money to build state roads released.

Types of federal aid

Separation of Powers

No one faction of the government should be able to acquire too much power

Concept from MontesquieuThree branches

Legislative branch (makes the laws)Executive branch (enforces laws)Judicial branch (interprets laws)

No one person can serve in more than one branch at the same time!

Separation of Powers

System of Checks and BalancesConstitutional Safeguard

Requires different branches to share power and cooperate to accomplish anything important

Nomination of judges, cabinet officials, and ambassadorsPresident chooses but must be approved by the

SenateNegotiation of treaties

President negotiates but must be approved by 2/3rd of the Senate

Enactment of legislationCongress pass lawsPresident may veto legislationCongress can override veto: 2/3rd majorityCourts may determine constitutionality of laws and

overturn them (only on constitutional grounds)

Examples of Checks and Balances

Amendment ProcessConstitution has lasted more that 200 yrs. because it is flexible.

Interpretation allows for the document to become more conservative or more progressive as the times warrant

Can be changed through amendments.

Proposal MethodsProposed amendment

wins 2/3 majority in the House and Senate (used for all 27 amendments).

A Constitutional convention is called by 2/3 of state legislatures. Any amendment can now be proposed at the convention (never been used).

¾ of all state legislatures approve of the amendment (used 26 times, excludes 21st)

¾ of special state ratifying conventions approve the amendment (used only once, 21st )

Amendment ProcessRatification Methods

How many votes are needed?States determine

how many votes needed for approval by legislaturesMost require simple

majorityBut 7 require either

3/5ths or 2/3rds majorities

If congress mandates a state ratifying convention, delegates are elected just for the purpose of voting on the amendment.

Only used to end Prohibition.

The first 10 make up the Bill of Rights (1791) Originally written by James Madison

Early Amendments (1795-1804) #’s 11 and 12

Civil War Amendments (1865-1870) #’s 13, 14, 15

Progressive Era Amendments (1913-1920) #’s 16, 17, 18, 19

Later Amendments (1933-1992) #’s 20- 27

The Amendments

Contains the fundamental principles of liberty and justice with underlay all of our civil and political institutions!Freedom of religion

Free exercise clause- government cannot interfere with an individual’s right to practice their faith

Establishment clause- congress cannot establish an official church in the US or give preferential treatment over others (usually called separation of church and state)

First Amendment

Freedom of speech and freedom of the pressCongress cannot make any laws that prevent

citizens from expressing their opinions, either in speech or in writing

The Supreme Court has placed some limitsSpeech cannot incite violence or intentionally slander

or libelJustice Oliver Wendell Holmes

“clear and present danger” the right to limit speech if it poses a threat to others

Schenck v. United States 1917New York v. United States 1971- government can

almost never use prior restraint (crossing out sections of an article before it is published)

First Amendment

Freedom of Assembly and Freedom to Petition the GovernmentProtects peoples rights to assemble peacefully,

to hold demonstrations and to ask the government for changes in policy

Rallies and demonstrations that encourage or incite violence and those that do not seek official sanction to trespass on public property are NOT protected.

First Amendment

Protects citizen’s right to bear armsMuch debate

Under all circumstances Or only when those citizen’s serve in “well-

regulated militias”

The Second Amendment

AntiquatedForbids the quartering of soldiers and the

direct support of the armed forcesDirect reaction to the British practice of using

civilian support to conduct military operationsFoundation for the Right to Privacy as

established in the case Griswold v. Connecticut (1965)

Third Amendment

Restrictions on Government Agencies in regards to criminal or civil procedural investigations

Protects an individual’s “person, house, papers, and effects against unreasonable searches and seizures”

Mapp v. Ohio (1961)Reviewed questions: use of probable cause,

traffic stop searches, and the use of search warrants

Challenges regarding interpretation of the exclusionary rule (all evidence unlawfully gathered must be excluded from judicial proceedings)

The Fourth Amendment

Protects an individual from the broad powers of govtGuarantee of a grand jury when being held for a

capital or other “infamous” crimeProhibits double jeopardy or the malicious

prosecution of an individual for the same crime over and over again

Establishes the right of government to seize property for public use under the right of eminent domain but only if such a seizure can by “justly compensated.”

Prohibits self incrimination or defendants being forced to testify against themselves when on trial.

Mandates federal govt cannot deprive an individual of “life, liberty, or property by any level unless due process of law is applied.”

The Fifth Amendment

Right to speedy public trial by an impartial jury

Individual have the right to:Habeas corpus or the right to be informed of

their crimesTo confront witnessesTo subpoena witnesses for their defenseTo have a lawyer for their defense

The Sixth Amendment

Trial by Jury in common law casesStatutory law has come to replace or

supersede common law today

The Seventh Amendment

Prohibits excessive bail in federal casesMost significant challenges from

The clause that prohibits “cruel and unusual punishment”

Capital punishment in the 20th Century? Does it constitute “cruel and unusual punishment?”

Various Supreme Courts have taken different positions

The Eighth Amendment

Reaffirms the principles of a limited federal government

“The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This means rights not specifically mention in the Constitution are still protected

Although vague it has led to the implied “right to privacy” and other individual rights not identified or even understood at the time of the creation of the Constitution

The Ninth Amendment

Defines the relationship between the states and the national government under the concept of FEDERALISM.

When powers are not defined or delegated by the Constitution, the states have reserved power to make their own individual judgments - so long as they do not infringe with the explicit rules of the Constitution and the federal government.

State issues such as death penalty, speed limit, drinking age (as long as they do not contradict the Constitution)

The Tenth Amendment

Passed in response to the Supreme Court ruling: Chisholm v. Georgia (1793) which held states did not enjoy sovereign immunity from lawsuits brought by residents of other states

This amendment OVERRULES Chisholm by providing that states may not be sued in federal court by citizens of another state or country without the consent of the states being sued.

The Eleventh Amendment 1795

Originally, Article II of the Constitution: selected electors for choosing the President got two votes. Candidate with the highest won the presidency and runner up got the vice-presidency

12th amendment followed the debacle of the election of 1800- a tie between Thomas Jefferson and Aaron Burr, who split the Republican vote

This amendment ensures that electors would now have to cast separate votes for the president and the vice president.

The Twelfth Amendment (1804)

Prohibited the institution of slavery except as a punishment for a convicted crime

Direct result of the Union victory in the Civil War

The Thirteenth Amendment (1865)

Purpose to prevent the South from denying equal rights to the newly freed slaves

“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.”

Supreme Court has used the “due process” and “equal protection” clauses to extend most of the Bill of Rights protections but has done so on a case-by-case basis called selective incorporation.

The Fourteenth Amendment (1868)

Granted voting rights to males of all races (designed to extend voting rights to newly freed male slaves)

Eventually the Supreme Court and the southern states later narrowed or eliminated the provisions of this amendment

Voter rights were only made secure later by the 24th Amendment and the Voting Rights Act of 1964.

Fifteenth Amendment (1870)

Before this amendment, most revenue was collected through tariffs that placed a huge burden on the poor

16th Amendment gave Congress the power to collect taxes on income, which allowed for the creation of a progressive income tax that fell more on the rich.

Sixteenth Amendment (1913)

Provides for the direct election of United States Senators

Previously, senators had been selected by state legislatures

The Seventeenth Amendment (1913)

ProhibitionProhibited the manufacture, sale, and

transportation of alcohol in or out of the US

The Eighteenth Amendment (1920)

Granted voting rights to all American women

The Nineteenth Amendment (1920)

Reduces the gap between the time when an outgoing president left office and a new one came in

Gap was damaging during the Great Depression

This amendment clearly defines the procedures regarding specifics of presidential and legislative terms.

It also shortens the amount of time between presidential election and inauguration.

The Twentieth Amendment (1933)

Repeals Prohibition (the 18th)Allows for the legalization of the sale of

alcohol18th Amendment caused the rise of organized

crime and widespread lawbreaking

The Twenty-First Amendment (1933)

Limits the presidential term to 2In response, to unprecedented popularity of

FDR and his four election victoriesVoted along party lines, no debate

The Twenty-Second Amendment (1951)

Allows the residents of Washington, DC to vote in presidential elections

Brings the total national electoral count to 538

The Twenty-Third Amendment (1961)

Provides for clarity regarding the selection of a new vice-president should the position become vacant

In response to the assassination of JFKAlso formally permits the vice president to

assume the presidency temporarily in the event of a presidential disability

The Twenty-Fourth Amendment (1967)

Passed over 203 years after it was first proposed.

If Congress votes itself a pay raise, that increase cannot take effect until after the next election

The Twenty-Seventh Amendment (1992)

The Unwritten ConstitutionMany aspects of our government are not specified in the Constitution

Judicial ReviewPolitical Parties and Political Conventions

Our framers disliked political partiesThey rose anyway and it is here that presidential

candidates are chosen and party platforms are made. Very important role in the US since the early 1800s

The CabinetPresidents group of advisors that make up the heads of

various executive departments of the governmentConstitution mentions the departments but doesn’t

require the president to seek their advice.George Washington established the tradition

Two term President????

Examples of Unwritten Rules

State and Local GovernmentsConstitution does not specify or stipulate what form the state governments must take.

Most state governments are structured after the model of the federal government.

All have executive- governorDirect state agenciesCommand national guardMay grant pardons and reprievesAppoint state judges with “advice and consent”

of state legislaturesMay veto acts of state legislature

State legislatures may override veto

Line item veto– always a hotly debated topic. Why?

State Governments

Similar to state governments in some respects- much more diversity in structure and organization

Local governments are city, town, countyMore than 86,000 local governments in the

US

State and local governments canImpose income taxes (although not all do)Impose property taxesHave lotteriesReceive block grants and share revenue

Local Governments