the constitutional underpinnings
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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
RatificationAnti-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 citizensIt 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 GovernmentSuspend 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 SafeguardRequires 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 warrantCan 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 againEstablishes 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
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