the constitution and the federalist papers - … constitution and the federalist papers ... judicial...

The Constitution and the

Federalist Papers

“The Constitution does not grant rights, it recognizes them.”

—Jason Laumark

Why the Articles of

Confederation Failed

The Articles did not give the national government coercive power over the states (e.g., the power to tax).

The Articles had no chief executive and no court system.

The Articles did not allow the national government to regulate interstate and foreign commerce.

The Articles did not provide centralized control over foreign relations.

Most laws required 9/13 votes to pass.

The Articles could not be amended without unanimous consent.

A house divided against itself cannot stand.

Federalists and Anti-Federalists are engaged in a

tug-of-war

The state of Connecticut is represented by a wagon. The driver warns: “Gentlemen this Machine is deep in the mire and you are divided as to its releaf…”

Shays’s Rebellion, 1786

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical… It is a medicine necessary for the sound health of government.”

—Thomas Jefferson

Why did the Articles of Confederation create such a weak national government?

Shays’s Rebellion

WEAK STRONG

King George III

…it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several States be held in Philadelphia for the sole and express purpose of revising the Articles of Confederation….

John Jay Alexander Hamilton James Madison

FEDERALIST #10

Madison on the "Mischiefs of Faction"

Remove the causes?

OR

Control the effects?

In Madison’s “republican remedy,” government is divided time and time again in order to control the influence of faction by preventing a dangerous concentration of power.

BRANCH OF GOVERNMENT

Legislative Executive Judicial

House Senate

LE

VE

L O

F G

OV

ER

NM

EN

T Federal

State

Local

POWER

Cross-cutting cleavages block minority factions

FACTION

Majority

Minority

A system governed by majority rule means that minority factions will be outvoted

“Extend the sphere” to increase the diversity of interests competing for power and attention

A system of representation filters out selfish interests

Separation of powers prevents a concentration of power

Checks and balances allow “ambition to counteract ambition”

Madison’s “Republican Remedy”

Madison was not terribly worried about minority factions… Should he have been?

Factions Today

Majority?

Minority?

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of citizens, or to the permanent and aggregate interests of the community.”

—James Madison, Federalist No. 10

Guiding

Principles

Social contract theory

Separation of powers

Checks and balances

Federalism

“The United States Constitution has proven itself the most marvelously elastic compilation of rules of government ever written.” —Franklin D. Roosevelt

Understanding the Constitution

Which branch of government did the Framers fear most?

Is this a democratic document? Has it become more democratic over time than the Framers intended?

How should we interpret the Constitution? In a loose way or a strict way?

Should we venerate the Constitution? How powerful is it as a written document?

Which branch

of government

did the framers

fear the most?

Section 1.

All legislative Powers herein granted shall be vested in

a Congress of the United States, which shall consist of

a Senate and House of Representatives...

ARTICLE 1

Section 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay

the Debts and provide for the common Defence and general Welfare of the United States;

but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the

Indian Tribes...

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of

Weights and Measures...

To constitute Tribunals inferior to the supreme Court...

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures

on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer

Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions...;--And

To make all Laws which shall be necessary and proper for carrying into Execution the

foregoing Powers, and all other Powers vested by this Constitution in the Government of

the United States, or in any Department or Officer thereof...

ARTICLE 1

ARTICLE II

Section 1.

The executive Power shall be vested in a President of

the United States of America. He shall hold his Office

during the Term of four Years, and, together with the

Vice President, chosen for the same Term, be elected,

as follows:

Each State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Electors,

equal to the whole Number of Senators and

Representatives to which the State may be entitled in

the Congress: but no Senator or Representative, or

Person holding an Office of Trust or Profit under the

United States, shall be appointed an Elector...

ARTICLE III

Section 1

The judicial Power of the United States shall be

vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain

and establish. The Judges, both of the supreme and

inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their

Services a Compensation, which shall not be

diminished during their Continuance in Office...

VOTERS

PRESIDENT

Four year terms

JUDICIARY

Lifetime terms

SENATE

Six-year terms

HOUSE OF

REPRESENTATIVES

Two-year terms

Electoral

College

State

Legislatures

confirms

nominates

Is this a democratic document?

How should we interpret the Constitution?

Things Not in the Constitution

Political parties

The president’s cabinet

Executive privilege

The right to privacy

The word “slavery”

Judicial review

The right to vote

Separation of church and state

“There are those who find legitimacy in fidelity to what they call ‘the intentions of the Framers.’ In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them… But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific contemporary questions… We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening years of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

—Justice William J. Brennan, Jr. (1906-1997)

"…[A] major check on judicial power, perhaps the major check, is the judges’ own understanding of the proper limits to that power… Once adherence to the original understanding [of the Constitution] is weakened or abandoned, a judge… can reach any result… As we have seen, no set of propositions is too preposterous to be espoused by a judge or a law professor who has cast loose from the historical Constitution.“

— Judge Robert H. Bork

I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

—John Roberts

Judicial Activism vs. Judicial Restraint

When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client. The judge’s only obligation — and it’s a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

—Samuel Alito

If the concept of “original intent” were

applied today, what would the result be?

Affirmative action

Abortion

Capital punishment

Gun control

School prayer

Campaign finance

Health care

Is the debate of judicial activism vs.

judicial restraint purely political?

Clinton impeachment

Bush v. Gore (2000)

Health care

The Impeachment

of President Clinton

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (The U.S. Constitution, Article II, Section 4) .

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself (Federalist #65).

Bush v. Gore (2000)

Jeffrey Toobin, writing for The New Yorker, says that Bush v. Gore was no novelty, despite the Court famously declaring it was a single-use decision. "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preeminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles.”

The Affordable Care Act The Commerce Clause describes an enumerated power listed

in Article I, Section 8 of the U.S. Constitution. It states that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Should we venerate the Constitution?

Sanford Levinson

“We must recognize that substantial responsibility for the defects of our polity lies in the Constitutional itself.”

Insufficiently democratic

Significantly dysfunctional

The Constitution

Even if you support having a Senate in addition to a House of Representatives, do you

support as well giving Wyoming the same number of votes as California, which has

roughly 70 times the population?

Are you comfortable with an Electoral College that, among other things, has since World War II placed in the White House five candidates—Truman, Kennedy, Nixon (1968), Clinton (1992

and 1996), and Bush (2000)—who did not receive a majority of the popular vote?

Are you concerned that the president might have too much power, whether to spy on

Americans without Congressional or judicial authorization or to frustrate the will of the majority of both houses of Congress by

vetoing legislation with which he disagrees on political, as opposed to constitutional,

grounds?

Do you really want justices on the Supreme Court to serve up to four decades and, among

other things, to be able to time their resignations to mesh with their own political

preferences as to their successors?

Should we venerate the Constitution?

“What effect does it [the Constitution] have on the quality of our lives? And the answer to that, it seems to me, is, Very little. The Constitution makes promises it cannot keep, and therefore deludes us into complacency about the rights we have. It is conspicuously silent on certain other rights that all human beings deserve. And it pretends to set limits on government powers, when in fact those limits are easily ignored.”

Racial equality

Free speech

Economic justice

Gender equality

War powers

Howard Zinn

What is federalism?

Federalism is a form of government in which power is divided between national and state government. Each has its own independent authority and its own duties.

Why Federalism?

Federalism checks the growth of tyranny

Federalism allows unity without uniformity

Federalism encourages experimentation

Federalism provides training grounds

Federalism keeps government closer to the people

http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy

http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---missouri

http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---kansas--again-

States: Meth Labs of Democracy!

The Federal Division of Powers GRANTED POWERS RESERVED POWERS CONCURRENT POWERS

Examples include:

Regulate interstate and national trade

Coin money

Declare war

Maintain armed forces

Establish a postal system

Enforce copyrights

Sign treaties

Examples include:

Establish local governments

Conduct elections

Establish schools

Police powers (e.g., the inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security)

Examples include:

Taxation of citizens and businesses

Borrow and spend money

Establish courts

Pass and enforce laws

Protect civil rights

These are powers federal and state governments have in common; they are not shared powers.

Election Reform

Should the United States nationalize election rules and procedures?

Education Reform

Should the federal government attempt to equalize school expenditures across states (similar to Vermont’s own Act 60)?

Inequality in Public School

Expenditures

STATE RANK

AVERAGE EXPENDITURE PER

PUPIL PER YEAR

New Jersey 1 $9,774

New York 2 $9,623

Alaska 3 $8,963

Connecticut 4 $8,817

Rhode Island 5 $7,469

Massachusetts 6 $7,287

Maryland 7 $7,245

Pennsylvania 8 $7,109

Delaware 9 $7,030

Michigan 10 $6,994

STATE RANK


PUPIL PER YEAR

Wisconsin 11 $6,930

Vermont 12 $6,750

Oregon 13 $6,436

Maine 14 $6,428

Ohio 15 $6,162

Wyoming 16 $6,160

Illinois 17 $6,136

West Virginia 18 $6,107

Hawaii 19 $6,078

Minnesota 20 $6,000


Expenditures

STATE RANK


PUPIL PER YEAR

Nebraska 21 $5,935

Washington 22 $5,906

New Hampshire 23 $5,859

Indiana 24 $5,826

Kansas 25 $5,817

Florida 26 $5,718

Montana 27 $5,692

Iowa 28 $5,483

Colorado 29 $5,443

Missouri 30 $5,383


Expenditures

STATE RANK


PUPIL PER YEAR

Virginia 31 $5,327

Texas 32 $5,222

Kentucky 33 $5,217

Georgia 34 $5,193

Nevada 35 $5,160

North Carolina 36 $5,077

California 37 $4,992

Oklahoma 38 $4,845

South Carolina 39 $4,797

Arizona 40 $4,778


Expenditures

STATE RANK


PUPIL PER YEAR

South Dakota 41 $4,775

North Dakota 42 $4,775

Louisiana 43 $4,761

New Mexico 44 $4,586

Arkansas 45 $4,459

Alabama 46 $4,405

Tennessee 47 $4,388

Idaho 48 $4,210

Mississippi 49 $4,080

Utah 50 $3,656


Expenditures

STATE RANK

AVERAGE COMBINED SCORE

ON SAT

North Dakota 1 1107

Iowa 2 1099

Minnesota 3 1085

Utah 4 1076

Wisconsin 5 1073

South Dakota 6 1068

Kansas 7 1060

Nebraska 8 1050

Illinois 9 1048

Missouri 10 1045

Average SAT Scores by State

STATE RANK


ON SAT

Tennessee 11 1040

Mississippi 12 1036

Michigan 13 1033

Alabama 14 1029

Oklahoma 15 1027

Louisiana 16 1021

New Mexico 17 1015

Montana 18 1009

Arkansas 19 1005

Wyoming 20 1001


STATE RANK


ON SAT

Kentucky 21 999

Colorado 22 980

Idaho 23 979

Ohio 24 975

Oregon 25 947

Arizona 26 944

Washington 27 937

New Hampshire 28 935

Alaska 29 934

West Virginia 30 932


STATE RANK


ON SAT

Nevada 31 917

Maryland 32 909

Connecticut 33 908

Massachusetts 34 907

California 35 902

Vermont 36 901

New Jersey 37 898

Delaware 38 897

Maine 39 896

Virginia 40 896


STATE RANK


ON SAT

Texas 41 893

New York 42 892

Florida 43 889

Hawaii 44 889

Rhode Island 45 888

Indiana 46 882

Pennsylvania 47 880

North Carolina 48 865

Georgia 49 854

South Carolina 50 844


STATE RANK

IN SAT RANK IN

SPENDING

North Dakota 1 42

Iowa 2 28

Minnesota 3 20

Utah 4 50

Wisconsin 5 11

South Dakota 6 41

Kansas 7 25

Nebraska 8 21

Illinois 9 17

Missouri 10 30

STATE RANK IN

SPENDING RANK

IN SAT

New Jersey 1 37

New York 2 42

Alaska 3 29

Connecticut 4 33

Rhode Island 5 45

Massachusetts 6 34

Maryland 7 32

Pennsylvania 8 47

Delaware 9 38

Michigan 10 13

Note that the highest spending states are NOT the highest achieving states. Why? Does this mean that money doesn’t matter?

Reforming Emergency Response

Should we federalize emergency response to terrorist attacks or national disasters, such as Hurricane Katrina?

Hurricane Katrina Key Players

FEDERAL LEVEL • George W. Bush, president (R) • Michael Chertoff, Secretary of the Dept. of Homeland Security • Michael Brown, Director of FEMA

STATE LEVEL • Kathleen Babineaux Blanco, governor of Louisiana (D) LOCAL LEVEL • Ray Nagin, mayor of New Orleans (D)

But… who is in charge?

What do families need to

cope with crises?

Housing assistance (HUD, FEMA)

Income replacement (UI, DUA)

Health care (Medicaid)

Cash assistance (TANF)

These programs are shared federal-state programs

These are federally funded, but administered locally

After Katrina

Cross-jurisdictional complexity

Short-term solutions to a long-term problem

Strained fiscal capacity

Lack of clarity

Need for an appropriate federal role

the constitution and the federalist papers - … constitution and the federalist papers ... judicial...

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