The Constitutional Underpinnings Module 1
Enlightenment Philosophies The framers lived during a time when new ideas about government were developed
Thomas Hobbes • Leviathan • Argued humans left to own devices would create chaos and violence • Best way to protect life was to give total control to the monarch
John Locke • Second Treatise on Civil Government • Liberty and property need to be respected • Natural rights: life, liberty, and property were granted by God • Duty of all governments to protect these
Charles de Montesquieu • De 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 Rousseau • Only good government was one that freely formed with the consent of the people • Shown as a “social contract,” that was an agreement among people.
Voltaire • Pen name (Francois-Marie Arouet) • Candide • Strong supporter of individual freedoms and freedom of speech.
The Weakness of the Articles of Confederation 1774-1781 Our first government of the United States
Accomplishments of the Articles of Confederation • 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
Weaknesses : Unable to solve growing problems • By 1787, decline in trade between the states • Value of money dropping • Threats from foreign enemies growing • Real threat of social disorder from groups within the country
Shay’s Rebellion • 1,000 armed farmers attacked a federal arsenal to protest the foreclosure of farms in western Massachusetts. • Major concern at Constitutional Convention • year
Federal Government Under the Articles of Confederation • Could not raise an army • Was completely dependent on the state legislatures for revenue- no ability to tax • Could not pay off the Revolutionary War debt • Could not control interstate trade • Had no Supreme Court to interpret the laws • Had no executive branch to enforce national law • Had no national currency • Had no control over import and export taxes imposed between the states.
Deficiencies direct cause for calling a convention • 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
The Constitutional Convention Philadelphia 1787
Our Old Debate and Our Current Debate • Divided over appropriate power and responsibilities of government • State’s Rights v. strong central government • Intrusion on the lives of individual citizens • General view of historians • Framers were pragmatists • They knew protecting everyone’s property and rights meant protecting their own • A few historians believe the convention was an elitist conspiracy to protect the wealth of the rich
Delegates Worked out Solutions • 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 states • New Jersey Plan-small states • Outcome • The 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 it • President has the power to veto acts of Congress • Presidential power is not absolute • Congress can override a veto • 2/3rds 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
Ratification Federalists Anti-Federalists • Alexander Hamilton • John Jay • James Madison • Wrote Newspaper Articles supporting the constitution • Collection of essays called the Federalist Papers • Primary 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
Federalist Paper #10 • Read it in your Annual Editions Book Article3 • Highlight any vocabulary you don’t understand • Read it again • Look up some background information on this paper • Why would it be a good primary source for you to start the school year off reading? • Post to the wiki before class on Friday.
The Living Constitution The blueprint for the structure of government and a guide for guaranteeing the rights of citizens It breathes!
Necessary and Proper Clause • Article 1, Section 8 • Allows Congress to “make all laws” that appear “necessary and proper” to implement its delegated powers. • Also known as the elastic clause • For example, • The Federal Reserve System • Cabinet for executive branch • Federal District Courts and the Courts of Appeals
Presidential Practice • Has expanded executive power • Executive 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.
Marbury v Madison 1803 • Supreme Court drastically increased its own power by granting itself power to overturn laws passed by the legislature known as judicial review. • Details:
Custom and Usage • Examples: • Political Party System • Organization, technology and fundraising • Created from custom and usage • Rules used in Congress
Federalism A 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
Delegated or Enumerated Powers • These powers belong to the national government only • Examples • Printing money • Regulating interstate and international trade • Making treaties and conducting foreign policy • Declaring war
Reserved Powers • Powers that belong exclusively to the states • According 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 licenses • The regulation of intrastate businesses • The responsibility to run and pay for federal elections
Concurrent or Shared Powers • Powers shared by both state and federal governments • Examples: • Collect taxes • Build roads • Operate courts of law • Borrow money
Federal Government Specific Powers Denied in Constitution • 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 taxes • Use money from the treasury without the passage of and approval of an appropriations bill • Grant titles of nobility
Specific Powers Denied in Constitution • States do not have the power to: • Enter into treaties with foreign countries • Declare war • Maintain a standing army • Print money • Pass 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 nobility • Impose of import or export duties
Obligations in the 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.
Nature of Federalism • 1st part of our history: dual federalism • State and federal gov’ts remained separate and independent. • Contact with gov’t on state level • Federal gov’t primarily on infrastructure and international trade issues • State’s Rights v. Nationalists • Most federal programs administered through states • Federal pays states • “Strings or no strings!”
Types of federal aid • 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 wants • Direct orders and preemption to force states to abide by federal law • Crossover sanction which requires a state to do something before the grant will be awarded • Example: raise drinking age to 21 before federal highway money to build state roads released.
Separation of Powers • No one faction of the government should be able to acquire too much power • Concept from Montesquieu • Three 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!
System of Checks and Balances Constitutional Safeguard Requires different branches to share power and cooperate to accomplish anything important
Examples of Checks and Balances • Nomination of judges, cabinet officials, and ambassadors • President chooses but must be approved by the Senate • Negotiation of treaties • President negotiates but must be approved by 2/3rd of the Senate • Enactment of legislation • Congress pass laws • President may veto legislation • Congress can override veto: 2/3rd majority • Courts may determine constitutionality of laws and overturn them (only on constitutional grounds)
Amendment Process Constitution 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.
Amendment Process Proposal Methods Ratification Methods • Proposed 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 )
How many votes are needed? • States determine how many votes needed for approval by legislatures • Most require simple majority • But 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 Amendments • 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
First Amendment • 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 press • Congress cannot make any laws that prevent citizens from expressing their opinions, either in speech or in writing • The Supreme Court has placed some limits • Speech cannot incite violence or intentionally slander or libel • Justice Oliver Wendell Holmes • “clear and present danger” the right to limit speech if it poses a threat to others • Schenck v. United States 1917 • New 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 Government • Protects 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.
The Second Amendment • Protects citizen’s right to bear arms • Much debate • Under all circumstances • Or only when those citizen’s serve in “well-regulated militias”
Third Amendment • Antiquated • Forbids the quartering of soldiers and the direct support of the armed forces • Direct reaction to the British practice of using civilian support to conduct military operations • Foundation for the Right to Privacy as established in the case Griswold v. Connecticut (1965)
The Fourth 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)