Download Lecture PPT: Constitutional Underpinnings

CR-1
Constitutional
Underpinnings
(5-15% of total questions)
Terms
•Democracy
demos (people) kratos (power)
•Direct democracy / Republican democracy
What is possible and what exists?
•Constitutionalism: what is necessary for a
democracy to exist
•Political Science: the study of government
•Majority=50% + 1 / Plurality= the most
•Theocracy, Oligarchy, Aristocracy, Monarchy
Why Democracies work
…or don’t.
Direct democracies:
No elected representation
Greek and Roman republics
Mob rule >>>> Dictatorships
Tyranny of the majority
Population
Worthiness to vote
Personal security, property in danger
(Initiatives, referendums, recalls and
Primaries)
Representative democracies: Elected representation
Republicanism
Rights of the Minority
Tolerance for voting results
(General elections)
Constitutionalism
•Separation of Powers
•Checks and Balances
•Limited government
•Popular Sovereignty
•Federalism
•Republicanism
•Individual Rights
…..the reason some countries will
never have one.
Political Philosophy
John Locke
Second Treatise on Government
(“All men are created equal” and “The natural state of man is to be free.”)
Thomas Hobbes
Leviathan
(“He that is bound only to himself is not really bound.”)
Charles de Montesquieu
The Nature of the Laws
(“What is the relationship between the nature of government and its principle?”)
Conditions Necessary for a Democracy not only to exist, but to thrive:
1. Free will / self-determination
2. Equal opportunity
3. Will of the people / Consent of the Governed
4. Free and fair elections
(***these can and will conflict with one another and with the principles of
Constitutionalism)
The Articles of Confederation
1777-1787
Weaknesses: (this is what the exam will ask for)
•No power to tax* (most important weakness)
•No chief executive
•No power to regulate trade
•No judiciary
•State sovereignty
•Unanimous amendment process
•No provisions for expansion into the territories
Constitutional Convention
May – September 1787
•Followed Shay’s Rebellion, highlighting the flaws in
the AOC
•Revising the AOC was the goal
•Debate and Compromise regarding the following:
•
representation in Congress
•
3/5 Compromise regarding slaves
•
bicameralism in the legislature
•
separation of power between branches
•
Slavery: legal or illegal?
The Connecticut Compromise
(also called the Great Compromise)
The Virginia Plan
(James Madison)
• Favored large states
• Proportional voting
• Executive chosen by
Leg.
• Veto power
• Independent judiciary
• Bicameral legislature
The New Jersey Plan
(William Patterson)
• Favored small states
• Equal voting
• Congressional power to
tax
• Unicameral legislature
• No national supremacy
• Popular voting
The US Constitution’s Structure
Article I
Article II
Article III
Article IV
Article V
Article VI
Article VII
Legislative Branch
Executive Branch
Judicial Branch
Relations among
States
Amendment Process
National Supremacy
Ratification
**HOR only branch elected directly.
• Electoral College
• 3/5 Compromise
• Bicameral
Legislature**
• No term limits
• Ratified by 9th
State on 9/17/1787
Federalists and Anti-Federalists
Favored ratification of the
USC
Mostly from larger, more
populous states
Favored a strong central
government
Favored proportional voting
James Madison, Alexander
Hamilton, John Jay,
George Washington
Opposed ratification of
the USC
Feared that the USC
created a monarch-style
government
Mostly from smaller
states
Favored States’ Rights
Favored equal voting
Patrick Henry, Thomas
Jefferson
Federalist Papers
• Authored by James Madison, Alexander Hamilton
and John Jay, using pen names such as “Publius”
• 85 essays published in New York newspapers from
8/1787-10/1788, encouraging ratification of the
USC
• Greatest source for “original intent”
• Most popular: Federalist #10, but also #51, #78
• “Federalist 10” is the single most important
document in the study of American government
Anti-Federalist Papers
• Authored by George Clinton, Robert Yates, etc…
using the pen names “Brutus”, “Cato” and
“Centinel”
• Published in New York newspapers conflicting with
the assertions of the Federalist Papers
• Asserted that the USC lacked any protection
against tyrannical rule
• Wanted a Bill of Rights included
Bill of Rights – What is a Clause?
• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
• A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and
bear Arms, shall not be infringed.
• No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of
war, but in a manner to be prescribed by law.
• 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.
• No person shall be held to answer for any 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.
• 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 where in 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 defense.
• In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United
States, than according to the rules of the common law.
• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
• The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
Other VIAs for CR-1
Amendment X (1787): The powers not delegated to the
United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people.
Amendment XIV (1868): Section 1. 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.
• Barron vs Baltimore (1833)
• Gitlow vs New York (1925)
Separation of Powers
“Secret” Powers
Legislative “Necessary and Proper” Clause:
Article I.8.18 The Congress shall have Power - 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.
Executive “Take Care” Clause:
Article II.3 …he shall take Care that the Laws be
faithfully executed…
These are called “Elastic” or “Implied” Powers!!!
Informally Amending the Constitution
Legislative Action
when Congress passes laws which further
define and interpret vague provisions of the US Constitution,
or elaborate upon enumerated powers, sometimes using their
implied powers (1.8.18)
Executive Action (1) when the President takes liberties with
non-specific enumerated powers of the presidency, or creates
powers using his implied powers (2.3). (2) executive orders (3)
precedent (4) executive privilege
Judicial Action checking the power of both the Legislative and
Executive Branches, powers not enumerated to them in the
USC (re: Marbury v. Madison)
Other Loopholes to Power
These are good examples of Informal Powers
Congressional Elaboration laws that provide “meaning” to
vague constitutional authority.
Executive Orders directives issued by a president without
Congressional approval that do not require the approval of
Congress
Executive Privilege the power to keep actions of the
Executive branch secret, especially when related to national
security.
Impoundment when the President refuses to allow
Executive departments to distribute money Congress has
already allocated.
Judicial Review
Marbury v. Madison
(1803)
Established the
supremacy of the
Supremes as the final
interpreters of the
USC.
(Don’t ever write about this
history, but know it.)
Formally Amending the Constitution
• 26/27 Amendments have gone through 2/3 Congress  3/4 State
legislatures
• Only the repeal of Prohibition has gone through 2/3 Congress 
3/4 State Conventions
• The other two methods have never been used.
Federalism
Types of Federalism
•State governments vs National Supremacy
• Enumerated (Expressed) and Reserved (Non
delegated) powers / Inherent Powers /
Implied
• Authorities in federalism
•Grants and Mandates
•Devolution
(McCullough vs Maryland 1819)
Types of Federalism
• Dual federalism: the federal government has limited powers (usually
related to foreign policy) while most power is in the hands of the
sovereign states (layered cake).
• Cooperative federalism: see Dual federalism
• Marble cake federalism (Grodzin): powers are fluid and overlapping
between state and national governments (the opposite of dual
federalism).
• “New” Federalism: (aka “Strict” federalism) Strict interpretation of
the Tenth Amendment.
• Permissive federalism: the states derives most of its powers from a
permissive but powerful national government.
• Fiscal federalism: shared power when allocating and spending money
State governments are beneficial because…
•
•
Citizen participation is better and teaches activism
the pool of candidates for federal office is wisely
chosen
• Action is more expedient when the federal government is
slow to act
• “Laboratories of democracy”
NATIONAL SUPREMACY: Article VI
Establishes the US Constitution, which gives powers
to the federal government, to be the Supreme Law
of the land, and in essence, also the Supreme Law
of the States.
Powers… a recap
Enumerated Powers: those specifically listed in the
Constitution, and belonging to the Federal (National)
government. Also called Federal, Expressed, Delegated
Powers.
Reserved Powers: any powers not specifically delegated to the
federal government are reserved for the States. Also called
State, Non-delegated, Non-enumerated Powers.
Inherent Powers: those powers not actually enumerated in the
USC, but that would not be considered something the
government would be capable of exercising (Ex: the president
having the power over foreign policy decisions)
Implied Powers: those powers that are not specifically
delegated to the Federal government, but that are “assumed”
to be there, usually relating to Article 1.8.18 and Article 2.3.
Concurrent Powers: those powers that are SHARED.
Political “negotiations”
Federal Mandates:
• Federal money used by states to implement
programs
• Unfunded mandates (NCLB)
Federal Grants:
• Categorical grants: specific reasons, with strict
regulation by the federal government
• Block grants: broad grants with minimal conditions
and supervision.
• Entitlements (???? % of total federal budgets?)
Devolution
The return of the Power of the States
•Threats of terrorism
•Faltering economy
•Non-performing schools
•Environmentalism
•Civil rights and civil liberties
Theories of Government
So who IS running things?
• People in positions of Economic power are running
government (the bourgeoisie, the proletariat
• the Bureaucracy is running government
• people in positions of military, corporate and
political power are running government
Pluralist view***: a combination of all of the
following plus the Media, Unions, and Special Interest
Groups control the government
Selective incorporation
Using the due process and equal
protection clauses of the 14th Amendment
(1868) to select specific clauses of the Bill
of Rights and apply them to the laws of
the States.