The Constitution Separation of Powers: Each branch of government has its own distinct powers, and the branches are generally required to cooperate to accomplish anything. Checks and Balances: Each branch has some control over the other two. This prevents any branch from abusing its power.
Checks and Balances • Legislative → Executive • Congress passes laws. • Congress must approve spending (appropriations). • Congress can override the President’s veto (2/3 in each House). • The Senate must ratify treaties (2/3 vote) and confirm nominations (majority vote) – “advice and consent.” • Impeachment (House) and conviction (Senate). • Congress has the power to declare war although the President is Commander-in-Chief.
Checks and Balances • Executive → Legislative • President can propose legislation. • President can veto legislation passed by Congress. • President can refuse to spend money Congress has appropriated. • President can call Congress into special session. • Vice President is President of the Senate, but has very little actual power in this capacity; votes only to break ties.
Checks and Balances • Executive/Legislative → Judicial • President appoints judges and Senate confirms them. • House may impeach and Senate may convict and remove from office. • Judicial → Executive/Legislative • Judicial review: Power to declare laws or acts of the other branches unconstitutional. • Not specified in the Constitution but asserted by the Court in Marbury v. Madison (1803).
Article IV: Full Faith and Credit Clause • Each state must recognize other states’ legally binding acts and contracts. • What about same-sex marriage? Under the Defense of Marriage Act of 1996 (part of which was found unconstitutional by the Supreme Court this summer), states can refuse to recognize legally binding same-sex marriages performed in other states.
Article V: Amendment Process • Proposal + Ratification: • Proposal • An amendment is passed by 2/3 vote of each House of Congress OR • A constitutional convention may be called by the legislatures of 2/3 of the states (has not happened since 1787) • Ratification (method chosen by Congress) • After being proposed, an amendment must be ratified by the legislatures of ¾ of the states OR • By ratifying conventions in ¾ of the states (21st Amendment)
Amendment Process Proposal ratification • Congress • Constitutional Convention • State Legislatures • State ratifying conventions
Bill of Rights • Amendments I-X. • Added to the Constitution in 1791 in order to gain support from the Anti-Federalists, who believed that the new Constitution gave the national government too much power. • North Carolina and Rhode Island refused to ratify the Constitution without the promise that a Bill of Rights would be included. • Seventeen additional amendments have been ratified since 1795.
The Federalist Papers • A series of essays arguing in favor of the ratification of the Constitution, written by Alexander Hamilton, John Jay and James Madison. Published as letters to the editor in newspapers to persuade the states to ratify, particularly New York. • Madison authored Federalist #10 and #51.
Federalist #10 • “[A] well-constructed Union” will “break and control the violence of faction.” • Faction: A group acting in its own “common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.” • Political parties • Economic classes • “Special interest groups”
Federalist #10 • “Curing the Mischiefs of Faction”: • Remove the cause or control the effects. • Remove the cause: Destroy liberty • “Worse than the disease” • Remove the cause: Give everyone the same opinions, passions and interests • “As impracticable as the first would be unwise.” • Each person will form his own opinions and exercise his own talents. This leads to different degrees and kinds of property. • Unequal distribution of property is the primary cause of faction (different economic classes).
Federalist #10 • Controlling the effects of faction • The republican principle: A faction may be outvoted if they’re not the majority. • If they are a majority, either they must be prevented from developing the same interests, or prevented from being able to use this interest to “carry into effect schemes of oppression.” • Democracy is not the answer. It’s easy for factions to form and difficult to check/control them.
Federalist #10 • Republican form of government is the answer: The people elect their representatives. • Madison believes that the elected representatives may discern the public interest better than the citizens themselves. • A republic can govern a larger and more diverse territory than a direct democracy where the citizens participate in decision-making themselves. • It is more difficult for factions to form in a larger republic.
Federalist #10 • Each representative should serve a small enough number of people to be familiar with their needs, but a large enough number to promote diversity of interests and prevent factions from forming. • Division of power between the national government and the states means that even if a faction takes power in one state, it won’t necessarily spread to the national government.
Federalist #51 • Separation of powers and checks and balances: Answer to those who argued that the new Constitution would give the national government too much power • “Each department should have a will of its own” and should not choose each other (exception for the judiciary). • Branches of government are separately chosen: • House of Representatives: Popularly elected • Senate: Elected by state legislatures • President and Vice President: Chosen by Electoral College • Judiciary: Appointed by President, confirmed by Senate.
Federalist #51 • Different branches should not control each other’s salaries. • The President’s salary cannot be changed during his term of office (it can only go into effect at the beginning of the next term). • A federal judge’s salary cannot be reduced during his term of office. • Why is this important?
Federalist #51 • “Resist encroachments of the others” (branches) • “Ambition must be made to counteract ambition.” An ambitious (power-seeking) Congress will check the power of an ambitious President, and vice versa. • “But what is government but the greatest of all reflections on human nature?”
Federalist #51 • “If men were angels, no government would be necessary.” (Why not?) • “If angels were to govern men, neither external nor internal controls on government would be necessary.” (Why not?) • “In framing a government which is to be administered by men over men…enable the government to control the governed, and… oblige it to control itself.” (Enough power to do its job but not enough to abuse its power.)
Federalist #51 • “In republican government, the legislative authority necessarily predominates.” • “Divide the legislature into different branches” (House and Senate) – this also settles the dispute between large and small states as to how seats in Congress should be apportioned (population vs. equality of states). • Presidential veto is not absolute; an absolute veto might be either abused or not used.
Federalist #51 • Power is divided not only among the branches of the national government, but also between the national government and the states. • They will check and balance each other. • Back to factions: In a monarchy, the sovereign has an “independent will” which can prevent factions from violating the rights of others; the republican system of government plays this role under the Constitution. • A republic can serve a larger and more diverse territory, less danger that factions will form. • “Republican cause” and “federal principle.”