UNIT II CONSTITUTIONAL UNDERPINNINGS AND THE BRANCHES OF GOVERNMENT Declaration of Independence US Constitution Bill of Rights Pennsylvania Constitution “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Ben Franklin “Posterity! You will never know how much it has cost my generation to preserve your freedom. I hope that you will make good use of it!” John Quincy Adams NAME____________________________________________________ The Foundations of American Government https://www.docsoffreedom.org/units/the-foundations-of-americangovernment “We have it in our power to begin the world over again.” Thomas Paine , Common Sense 1776 Are people good or evil? Your answer probably depends on how you have seen people around you behave. If you have studied history, the answer might further depend on what you think of past wars, as well as how people manage to live alongside one another in peace. People can be both hateful and noble, can’t they? James Madison, an ardent student of political philosophy, put it this way: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. (Federalist No. 51) Madison, along with others who had experienced the British government’s violation of the traditional rights of Englishmen in the years leading to America’s independence, looked to the lessons of human nature and history to determine how best to structure a competent government that would promote liberty. If you were asked to establish a new government for you and your neighbors, the rules you would make—and the amount of power you would give to future government officials—would probably depend on how much you trust people to behave well. The problem is that people are capable of doing many wonderful things, but history also shows that otherwise peaceful citizens can be persuaded to allow—or even join in—the use of government to abuse others. For example, after five centuries of British monarchs (mostly) recognizing such traditional rights as protection of property rights and trial by jury, the three King Georges in succession began to rule the colonies by fiat. The Declaration of Independence listed specific violations committed by King George III. Among other abuses, he dissolved colonial legislatures, depriving colonists of the right of representation. He made judges dependent on his will alone, leading to the corruption of justice. He deprived Americans of fair jury trials. He stationed standing armies in the colonies in times of peace and required colonists to provide room and board for them. He imposed taxes without representation. He cut off their trade with foreign countries. The majority in Parliament approved these policies. Seeking to offset the debt accumulated during the French and Indian War, Parliament passed a number of measures which the colonies viewed as blatant violations of traditional liberties of Englishmen. In his 1776 pamphlet, Common Sense, the British revolutionary Thomas Paine wrote, “We have it in our power to begin the world over again.” The time had come to cut ties with the mother country and become free and independent states. How to design a system that would “first enable the government to control the governed; and in the next place oblige it to control itself” was the challenge the American Founders faced. The prevailing view through times past had been that powerful rulers of noble upbringing were needed to keep people from falling back into the tribal warfare that stains much of human history. They believed not only that kings were fit to rule people, but also that God himself gave monarchs that authority—a concept known as “divine right of kings.” The reasoning was that God could have given anybody the right to rule, and He selected the specific people who should govern others. The American Founders—and the American people generally—did not trust a king. They had seen kings behave like spoiled children, destroying businesses they disliked and imprisoning people without just cause. The world was changing, with new inventions making it possible for more and more people to work their way out of poverty. People needed not only to be free from fear of what kings might do to them, but to engage in commerce. The Founders believed that liberty was essential to human progress, and that we all have inherent rights to make decisions about ourselves and our property— rights that not even a king has the authority to take away. As John Locke explained in his Second Treatise of Civil Government, the only legitimate government was one to which the people had given consent. The people themselves have a voice, and need not simply submit to rulers who violate their liberties. If there were no king, could the Founders settle on a pure democracy, in which the majority gets whatever it wants? The Founders rejected this solution, too. They believed history proved that democratic majorities often end up behaving like tyrants—abusing minorities, starting wars, and running up huge debts. As children they had learned about persuaders like the Greek orator and general Alcibiades, who enticed Athenians to wage a disastrous war with Sparta, and Gaius Flaminius Nepos, who violated the Roman constitution to win popularity with the masses. The tyranny of the majority, expressed through corrupt politicians, can happen anywhere, anytime. History, the Founders believed, showed how otherwise decent people can be swayed by emotion, selfish impulses, and corrupt leaders to do terrible things to one another. The Founders worried that a democracy would become just another version of tyranny. The point of government, as the Founders saw it, was to enable a people to live without fear of having their persons or property violated, to cooperate to govern themselves peacefully, and to repel foreign threats. Without government, the powerful would rule, and nobody’s rights would be secure. Philosophers like John Locke, who strongly influenced the Founders, argued that citizens form for themselves a “social contract” in which they sacrifice a small amount of their natural freedom to a government whose protection makes them more free to live their lives than would otherwise be possible. When government repeatedly violates this contract by taking more freedom than is necessary—and especially when it violates the rights that it was created to protect—the Founders believed that people have a right and duty to abolish and replace it with something better. That is precisely what they did when they declared independence from Great Britain. The Founders knew that legitimate governing authority must be just. This did not mean that everybody gets an equal share of everything, but that everyone has the right to be treated equally and fairly by their government. While earlier generations defined nations by the power it takes to rule, the Founders were thinking about a nation of citizens, born with inalienable rights, who should only be governed by virtuous representatives accountable to the people. Earlier philosophers believed ruling authority came from an aristocracy, a military power, or from God. After much thought and long study, the Founders believed legitimate ruling authority only comes from the citizens themselves. Philosophers like John Locke, who strongly influenced the Founders, argued that citizens form for themselves a “social contract” in which they sacrifice a small amount of their natural freedom to a government whose protection makes them more free to live their lives than would otherwise be possible. A Social Contract is a statement of individual rights and obligations specifying how citizens and government relate to each other. But the Founders faced a dilemma: How to give people the power to control their government while also denying to them the power to use government to violate the rights of others. People, even though they frequently live and work alongside one another in harmony, can behave selfishly. It is human nature to pursue what we believe will make us wealthy, powerful, or popular—even to the point of harming others. Worse still, we can convince ourselves that our bad behavior is actually virtuous. A thief, for example, might tell himself he has no choice, even as poorer people work to survive without stealing. A powerful politician may tell herself that slandering her opponent is excused by all the good she will do once she is elected. People are clever. We are good at justifying our actions—especially to ourselves The Founders’ challenge, as they built on their experience with a national government under the Articles of Confederation, which many considered too weak, was to establish a government that was not so powerful that people could use it to pursue their own interests at the expense of other people's rights. As a result, they settled on what is called a constitutional republic. It was an ingenious solution. Our Constitution’s authors sought to leverage for the common good people's natural inclinations toward ambition and self-interest. That is why they divided our government’s power between executive, legislative, and judicial branches. It is also why they split Congress into two bodies. They gave members of the House of Representatives smaller districts and shorter terms so they would keep the desires of their constituents first and foremost. But they balanced this more democratic body with Senators who represent entire states, for longer terms, with the expectation that they would therefore have the freedom to make decisions that they considered right even when they were not popular. The Founders gave this Congress the power to make laws, but gave the power of administering those laws to the president and the executive branch. Separate from these was the Supreme Court, its members appointed by the president but with the Senate’s approval. In addition to splitting government power among three branches, the Founders also guarded against a concentration of power by dividing governing authority geographically. The national or central government would have carefully enumerated and limited powers, and all other functions that the people wanted their government to have would be left to state and local decision-making. The significance of state authority is reflected in the manner by which the Constitution was ratified. It did not take effect until approved by nine of the thirteen states through conventions called specifically for that purpose. The Constitution was engineered so that the competing ambitions of government officials—as well as the competing ambitions of different branches and levels of government—would work to form a system of checks and balances. It was an ingenious solution. Our Constitution’s authors sought to leverage for the common good people's natural inclinations toward ambition and self-interest. If all government power rested with just a few people, these few might begin to abuse other's rights. But because the Constitution spreads government power among many people, and sets up those powers so that they are “checks” on one another, natural self-interest works in favor of "We, the people." In this way, ambition—properly exercised—becomes a useful tool for the preservation of rights. Equally important with these checks and balances, however, is the principle expressed in the Preamble of the Constitution itself. “We the People…do ordain and establish this Constitution for the United States of America.” The Founders knew that all legitimate government authority comes from the citizens. That is why the Constitution is written as a narrow list of government powers. The first eight amendments, meanwhile, make especially clear the kinds of things the federal government is not allowed to do. The Ninth and Tenth Amendments emphasize that rights and powers not listed remain with the states and people. The Founders tried to design a government that would protect citizens from tyrants and from the tyranny of unrestrained democracy, but they knew that a clever design would never be enough. They counted on citizens to embrace virtues like honesty, respect, humility, and personal responsibility. The American republic was designed to encourage and depend on those citizen virtues. They also counted on people to be tolerant of one another’s differences and to act justly, standing up to attempts to violate people's liberty or their right to their own property. Even though the Founders designed a government that harnesses human self-interest to check itself, they knew that freedom will always depend, ultimately, on the willingness of citizens to defend it. While the Founders expected government officials to keep an eye on one another, they knew it was even more important for citizens to keep an eye on government and to vote for capable and trustworthy officers. It is our responsibility to exercise vigilance and to refuse power to anyone who behaves as if the Constitution is not the law of the land. Effective government requires that the governed choose well. Finally, the Founders expected citizens to be educated, to understand why freedom is important, and to have the wisdom to recognize when laws or ideas that sound good at first might cause long-term harm. John Adams noted that wisdom, knowledge, and virtue are essential to preserving freedom. Each generation must help cultivate these qualities in the next. THE DECLARATION OF INDEPENDENCE In July of 1776, the thirteen American colonies had already been at war with England for more than a year. It might seem strange that Americans would feel a need to spend time writing a formal Declaration of Independence, but that is exactly what they did. They felt obligated, they wrote at the very beginning of the Declaration, “by a decent respect to the opinions of mankind” to explain why they no longer considered themselves subjects of the British kingdom. This suggests how members of the Continental Congress such as Thomas Jefferson, who drafted the Declaration, viewed the relationship between a government and its citizens. They believed in a “social compact” among citizens, and between citizens and government. Simply by virtue of existing, they believed, every person has an equal right to “life, liberty, and the pursuit of happiness.” In order to make these rights secure, they wrote, “Governments are instituted among men, deriving their just powers from the consent of the governed.” Thomas Jefferson July 4, 1776 A government, in other words, is established by citizens. The only reason people agree to this is so that government will protect their fundamental rights. King George III, wrote the Founders, had been breaking that agreement for a long time. Instead of protecting the people, his government had engaged in a “long train of abuses” of their rights. They believed no government should be changed “for light and transient causes.” They asserted, however, that once the government becomes an enemy of rights, rather than their protector, citizens have a right to “alter or abolish” that government. The Declaration of Independence includes a long list of King George’s violations of the colonists’ rights. He had found numerous ways to keep their representatives from having a say in how the colonies were governed, even as he levied new taxes on them. He sent numerous government officials to tell them what to do and kept large numbers of troops among them, even to the point of forcing colonists to give over parts of their homes to soldiers. He restricted their ability to sell their products overseas, locked up colonists without fair trials, and allowed his navy to force colonists into working as sailors against their will. Meanwhile, wrote Jefferson, the people who had been their fellow British citizens ignored their cries for help. “They too,” according to the Declaration of Independence, “have been deaf to the voice of justice.” Why did the Founders bother to write all this down? Plenty of people in history had gone to war in order to have power over territory, and none of them had bothered to explain why. Unlike most nations in history, however, America hadn’t gone to war because they were a tribe fighting other tribes, or because Americans wanted to kill people who practiced a different religion, or because they believed the only way to have wealth was to seize other people’s property and make it their own. For most of their lives, they had considered themselves British subjects, and they had been proud of that fact. In the Declaration itself, they call the British their “brethren.” They wrote the Declaration of Independence precisely because being British subjects had meant something important to them. It was no small thing to break the social compact between citizens and government, and the Founders argued that George III had broken Britain’s compact with the American colonies. They believed so strongly in the rights of people that they could not continue to put up with the King’s tyranny. He had broken the contract a legitimate government has with its citizens. The very justification for a government—protecting the rights of the people—was also the justification, in the absence of that protection, for abolishing that government. And so we have, wrote the Founders, “Full Power to levy War.” This may seem trivial to put in the document, given that they had already shown that they knew how to wage war against England. Their point, however, was that this was a morally justified war, waged because people will always have the right to defend their freedom. Reading the Declaration of Independence, we see that the United States is a nation founded not on conquest or tribal loyalty, but on the idea of a free and self-governing people. The Founders—all of them important and well-regarded men—believed so strongly in the right of self-governance and the protection of individual rights that they pledged “our Lives, our Fortunes, and our sacred Honor” to the cause of independence. They knew the price, should they lose this battle with the most powerful country on the planet, would likely be the loss of all their wealth, as well as their lives. The members of the Continental Congress who signed Jefferson’s Declaration had more to lose from war with England than most colonists. To pursue their ideas took courage. It is easy to forget this, living as we do under the protection of the Constitution they established. Because there will always be people who want to rule over others, however, we should remember that every generation of citizens must muster the courage to resist those who would take their freedoms away, whether all at once, or bit by bit. THE DECLARATION OF INDPENDENCE I. The Basics: 1. Who was the main author? 2. When was the Declaration of Independence finished / published? 3. What were the purposes behind writing the Declaration? II. Translation – Read the Opening two paragraphs of Jefferson’s Declaration. This is Thomas Jefferson’s statement of the American Mind. After reading and thinking, you are to summarize Jefferson’s vision of American Political Culture – that is what Jefferson considered to be the key American Beliefs about government. The Declaration of Independence IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.-Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. THE ARTICLES OF CONFEDERATION I. POST DECLARATION EVENTS 1. What was the 1st form of government in American called? Articles of Confederation 2. This new American government was to be a CONFEDERATION. What did this mean? Loose association of sovereign states – League of Friendship – for defense purposes 3. How long did the A of C last? From March of 1781 to September of 1787 (6 years). II. GOVERNMENT UNDER THE ARTICLES 4. Describe how this new plan for American government under the Articles of Confederation was to be organized? 1 branch government – Congress - No executive or courts Unicameral Congress – 1 House 5. How many votes did the states have under the A of C? 1 vote per state 6. How was representation in the Congress to be decided? Each state legislature selected and paid their delegates – Controlled by state legislatures 7. What were the main powers of the Congress under the A of C? Lawmaking powers only Make war and peace Enter into treaties Manage an army provided by states III. WEAKNESSES OF THE ARTICLES OF CONFEDERATION 8. Why was the government under the A of C so weak? Fear of a powerful government that would take away rights like the King again and a desire for State Sovereignty 9. Weaknesses under the articles: WEAKNESSES EFFECTS ON THE COUNTRY 1. No Power to levy and collect taxes – only borrow from states 2. No power to regulate trade 3. No executive to enforce the laws – only could ask people to obey -“Please with sugar on top!” Need Super majority to pass laws – 9 out of 13 states so very difficult to pass laws 5. Unanimous consent of all states to make an amendment No 6. court system to settle disputes 4. 7. No set currency The Constitution In 1787, many Americans were concerned that the Articles of Confederation did not grant enough power to the central government to protect the rights of the people. Under the Articles, the national government was unable to regulate commerce, taxation, currency, treaties, and protect the rights of individuals and states. The states called a delegation to meet in Philadelphia in the summer of 1787 and from that convention the new Constitution was born. "Scene at the Signing of the Constitution of the United States," painting by Howard Chandler Christy When the American Founders declared independence from Britain, they explained that they were doing so because its government was violating their inalienable rights, which include “life, liberty, and the pursuit of happiness.” As they organized to fight the British and write the Declaration of Independence, the American colonists formed a confederation of states with some basic agreements called “The Articles of Confederation and Perpetual Union.” The Articles of Confederation enabled them to cooperate in waging the Revolutionary War and to speak with a single voice when negotiating for weapons and trade with countries like France. Soon after the war ended, however, many Founders began to argue that the Articles of Confederation were not adequate to secure the rights they had fought to defend. Any law or treaty established under the Articles could be ignored by a state government. Citizens of one state could be treated with unfairly negative bias by courts in another state. States were beginning to tax one another’s products, threatening to undermine American prosperity by hampering free trade. “The peace of the whole,” argued Alexander Hamilton, “ought not to be left at the disposal of a part” (Alexander Hamilton, Federalist No. 80, 1788). Americans had battled one of the most powerful nations on earth because its king trampled their rights. Now many believed they faced the opposite problem: a government without enough authority to pay its debts, guarantee equal treatment before the law, or fund a small defensive army. As states sent delegates to a convention organized to revise the Articles of Confederation, many ideas emerged about how a national government should work. Despite their differences, most delegates agreed that government should be constrained from abusing citizens’ rights while also possessing sufficient power to protect those rights. They also understood that whatever they proposed needed approval from legislatures in most of the states, which meant that they also had to take into account local interests and concerns. Their goal—as they eventually explained in the opening sentences (the Preamble) of the Constitution—was “to form a more perfect union.” Many who think the word “perfect” can only mean “flawless” miss what the Constitution’s framers intended. They weren’t claiming that the Constitution would make for a flawless national government. They were using the definition of “perfect” that meant—especially in their day—“complete” or “lacking in no essential detail.” In other words, they desired a true union of states, with enough authority to bind them and their citizens, yet with a universal set of rights and freedom for people to make most governmental decisions in their states and communities. The Constitution’s preamble also reveals that its framers believed the system they devised—by dividing government into branches that would check one another’s exercise of power, and listing specific government powers in order to ensure rulers wouldn’t imagine they had more authority than intended—would “establish justice” for its citizens. Justice meant that citizens would be treated equally and fairly by their government and also have their persons and property protected. This more perfect union, rooted in ideas of freedom, individual responsibility, and justice, would help to “insure domestic tranquility” between states and their citizens and also provide “for the common defense.” Our national government would have courts to handle disputes between states or between citizens of different states, as well as the power to raise an army if foreign enemies threatened our lands or people. Instead of a mere collection of states as a “firm league of friendship,” the ratification of the Constitution by state conventions would recast the nation as a sovereign entity authorized by “We, the people of the United States.” It would have a government with specific and limited authority. Its leaders would be expected to “promote the general welfare,” meaning they would only pass laws that benefited the nation as a whole and not merely narrow or local interests. This new, federal government would not make most decisions or take responsibility for making people’s lives better. That would remain the responsibility of individuals and families acting independently or joined together in their communities. That is why the Founders placed such a strong emphasis on virtue. They knew that no government could ever establish peace and prosperity without citizens who were willing to work hard, take care of their families, and stand up for freedom and justice. The job of the federal government would be to protect the freedoms people needed to govern themselves, pursue religion as they saw fit, engage in commerce, and live peaceably alongside one another. It was designed to “ensure the blessings of liberty to ourselves and our posterity.” Although delegates disagreed on many points (for example, how to balance the power between the large and small states), they produced a document that they believed gave their proposed national government the necessary power to protect freedom while shackling it with the necessary restrictions to keep it from becoming a tyranny. THE CONSTITUTION A PLAN FOR THE U.S. GOVERNMENT 1. What is a “CONSTITUTION”? The plan for a country’s government. The highest law in the land! It sets the organization and LIMITS the power of government. 2. There are 3 parts to the U.S. Constitution: Preamble Main Body Amendments 3. A Preamble is a statement of purpose. The Preamble to the U.S. Constitution is the introduction and the purposes of the Framers in making this new government. Review the Preamble and summarize the 6 purposes of the Founding Fathers in making this new government. 6 purposes of Founding Fathers: We the People of the United States, in 1. Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 2. 3. 4. 5. 6. 4. The Main Body consists of 7 Articles or Sections: Article I – Legislative Branch Article II – The Executive Branch Article III – The Judicial Branch Article IV – National – State Relations – FEDERALISM Article V – Amendments Article VI – The Supremacy Clause Article VII – Ratification 5. The U.S. Constitution rests on 6 major principles: LIMITED GOVERNMENT – Principle that the power of government is limited by the terms of the Constitution – the government is not absolute or all powerful. POPULAR SOVEREIGNTY – Government principle that the people have all the power over the government REPUBLICANISM – Form of democratic government in which the people / voters hold sovereign power. The people exercise their sovereign power by electing representatives who are responsible to the voters. FEDERALISM – Constitutional Principle that takes all of the power of government and divides it between the levels of government: national, state and local – each level has direct authority over the people. SEPARATION OF POWERS – Constitutional Principle that takes the power assigned to the national government and divides it between the 3 branches of government , executive, legislative and judicial CHECKS AND BALANCES – Constitutional Principle in which each branch of government is given powers that check or limit the powers of the other branches. (EX: Congress makes laws but the President can veto a law) - JUDICIAL REVIEW – Principle that gives Judges the power to review laws of Congress and actions of the President to determine if they are consistent with the Constitution. See the US Supreme Court case of Marbury v. Madison in 1803. RULE OF LAW – The basis of a legal system in a democratic state. This principal holds that all laws must be passed under the legislative system of the country, they must be published for everyone to know, and that everyone is to be treated equally under the law. ANNOTATED US CONSTITUTION OBJECTIVE: The students will develop a better understanding of the organization, structure and powers of the US Government by creating their own Annotated US Constitution. ASSIGNMENT: Read the US Constitution and summarize the following parts into your own Annotated US Constitution. Your focus should be on the organization, the structure, the qualifications, and the powers of the US Government. I. PREAMBLE – Summarize the 6 goals of the Founding Fathers in making this new Constitution ARTI CLE I – LEGISLATIVE BRANCH Section 1 - Congress Section 2 – House of Representatives - Clause 1 to 5 Section 3 – Senate - Clause 1 to 7 Section 4 – Elections for Congress - Clause 1 to 2 Section 5 – Procedures - Clause 1 to 4 Section 7 – The Legislative Process - Clause 1, 2, 3 Section 8 – Clauses 1-18 – The Powers of Congress Section 9 – Clause 2 to 8 – Restrictions on the power of the national government Section 10 – Restrictions on the States – Clauses 1 to 3 ARTICLE II - EXECUTIVE BRANCH Section 1 – Clause 1 Executive Power and Terms of Office Section 1 Clause 2 and 4 – Electoral College – Read in conjunction with the 12th Amendment. Section 1 Clause 5 and 7 – Qualifications to be President and Compensation Section 1 Clause 8 – Oath of Office Sections 2 and 3 – List the powers and role of the President in terms of Administrative Powers, Legislative Powers, Military Powers, Judicial Powers, Foreign Policy Powers Section 4 – Impeachment (Also see Article I sections 2 and 3) ARTCILE III – JUDICIAL BRANCH Section 1 – Judicial Power and qualifications / selection plus compensation Section 2 Clause 1 and 2 – Jurisdiction (power of courts to hear specific cases) Section 2 Clause 3 – Impeachment procedure Section 3 Clause 1 AND 2 – Treason ARTICLE IV – RELATIONS BETWEEN STATES AND BETWEEN STATES AND FEDERAL GOVERNMENT (FEDERALISM) Section 1 – Full Faith and Credit Section 2 – Clause 1 Privileges and Immunities Section 2 – Clause 2 Extradition Section 3 – Clause 1 and 2 – Process of admitting or changing states Section 4 – Guarantees by the US government to the State governments ARTICLE V Describe the Amendment Process ARTICLE VI CLAUSE 2 - Supremacy Clause Clause 3 – Religion and holding office ARTICLE VII – RATIFICATION __________________________________________________________________________________ NAME AND NUMBER OF AMENDMENT 1ST 2nd 4th 5th 6th 8th 9th 10th 11. 12. THE AMENDMENTS IMPACT ON DESCRIPTION GOVERNMENT Freedom of Expression – Religion, - National Power Speech, Press, Assembly and Protest Right to Bear Arms – Own and - National Power possess guns Privacy – Free from unreasonable - National Power searches and seizures Grand Jury before arrest for federal - National Power crimes / Double Jeopardy / SelfIncrimination / No loss of life, liberty, or property without Due Process / Eminent Domain Criminal Rights – Attorney / Speedy - National Power Jury Trial / Know the charges / Know who the witnesses are / Bring in your own witnesses Bail (innocent Until Proven Guilty) - National Power and No Cruel or Unusual Punishment There are other rights and freedoms - National Power retained by the people beyond the ones listed in the Bill of Rights Every power not expressly given to - National Power the National government is RESERVED to the states Limits the right of federal courts to - National Power hear lawsuits against states Presidential Elections and the Structural electoral College + national and – State Powers + National and – State Power 13. Abolished slavery 14. Civil Rights, Citizenship, Due Process and Equal Protection 15. Suffrage to all citizens (African Americans right to vote) + Electorate Power 16. Income Taxes + National Power 17. Direct Election of Senators + Electorate Power 18. Prohibition 19. Women’s Suffrage + National and – State Power + Electorate Power 20. Lame Duck Amendment Structural 21. Repealed Prohibition - National and + States Power 22. Limits on Presidential Terms - Electorate Power 23. DC Electoral Votes + Electorate Power 24. Abolished Poll Taxes + Electorate Power 25. Presidential Succession and Disability Structural 26. Suffrage for 18 to 21 year olds + Electorate Powers 27. Congressional Pay Raises - National Power and Structural The Ratification Debate After the Constitution was completed and signed by 39 delegates on September 17, 1787, many of the debates from Independence Hall continued in the debate over ratification in the states. For the Constitution to go into effect, nine of them would have to ratify (or agree to adopt) it. A party division arose: Federalists argued in favor of ratification, Anti-Federalists against. Leading Federalists James Madison and Alexander Hamilton made a case for ratification in the Federalist Papers. Leading AntiFederalists Patrick Henry and George Mason (the latter who had attended the Convention but refused to sign the final document) argued that the central government created by the Constitution would be a threat to liberty. After a long, hot summer deliberating on the Constitution, the delegates to the Convention returned to their home states in late September of 1787 knowing that their work was unfinished. The Constitution was written and signed, but its ratification by the people was far from certain. As specified in Article VII of the Constitution, two-thirds, (or nine of the then-thirteen states) would have to ratify the Constitution before it could go into effect in those states. And in many of those states, the document was met with increasing skepticism: Had the Convention exceeded its mandate to revise the Articles? Why had the Convention been conducted in secret? The delegates would have to reasonably convince their fellow Americans that the Constitution represented the best way forward for the new nation. Many of the debates about the proper scope of government power that had gone on inside Independence Hall continued on in the states. Those who argued that the Constitution should be ratified became known as Federalists. Not surprisingly, most of the people who had helped write the Constitution were Federalists. James Madison, Alexander Hamilton, and John Jay together wrote a collection of 85 essays that were published in newspapers of the day, arguing for the ratification of the Constitution. These essays became known as The Federalist Papers (1787-1788),and are still today referenced as the most authoritative source (along with Madison’s Notes of the Federal Convention) on the meaning of the Constitution. People who opposed the Constitution were known as Anti-Federalists. Their objections were wide and varied. They pointed to the national government’s power to tax and its supremacy over state law as other signs of danger. One point of major concern was the “necessary and proper” clause. This clause in Article I, Section 8, which came at the end of the list of Congress’s powers, gave Congress the 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 any Department or Officer thereof". The Anti-Federalists worried that Congressmen would see this clause as an additional grant of power, rather than a means to carry out the enumerated powers in Article I. Today this clause is sometimes referred to as the “elastic clause” (a term which would probably have caused the Anti-Federalists to say “I told you so!”) because some do in fact take it to mean Congress can “stretch” its powers to have more control over the states and the people. Alexander Hamilton defended the clause in Federalist No. 33, asserting that the grant of power to make laws necessary and proper to carry out its listed powers was simply empowering Congress to actually bring about the ends it had been granted the power to accomplish. He asked rhetorically, “What is the ability to do a thing, but the power of employing the means necessary to its execution?” The people, furthermore, would have a final check on the power of Congress: “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution...” (Alexander Hamilton, Federalist No. 33, 1788). In Federalist No. 44, James Madison noted that the Necessary and Proper Clause had been “assailed” more than almost any other. He defended it on the grounds that it was the best option available, and if lawmakers abused it, it was subject to the same safeguards built into the Constitution that checked Congress’s power. If Congress went outside the bounds of the power delegated to it, the executive and judicial branches would provide checks against it, and of course the people could vote out bad Congressmen: “[I]n the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers” (James Madison, Federalist No. 44, 1788). But Hamilton’s and Madison’s arguments were not convincing to Patrick Henry. The old republican Henry had “smelt a rat” and therefore declined to attend the Convention. The great orator who a decade earlier had rallied his fellow Virginians against the British crying “Give me liberty, or give me death!” this time put his great speaking skills to work against the new plan of government. He was suspicious of the Constitution for many reasons. For one thing, it began, “We the people,” rather than with a list of the states, as the Articles of Confederation had. Henry asserted that this meant the national government was now over all the people. What, then, would become of the states? Henry was utterly convinced that the plan of government he saw in the Constitution would lead to a “consolidated” government, or one that would overpower all the states. He warned, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined” (Patrick Henry, Virginia Convention on the Ratification of the Constitution, 1788). His fellow Virginian George Mason was equally opposed to the Constitution. Mason had attended the Convention but, in the end, refused to sign his name to the document because he believed the rights of the people were not safe. He had many objections to the document, and one was that it lacked a bill of rights. He and Elbridge Gerry had called for a bill of rights to be included in the document at the Convention. They pointed out that since the Constitution was supreme over state law, state bills of rights were no security. Their appeals were rejected, however, and the Constitution did not include a bill of rights. The Constitution was sent to the states for ratification, and the stage was set for a debate on the merits of the Constitution, including the need for a bill of rights. Perhaps the most important and radical thing about the ratification debate is that it was a debate. It was a national conversation in which the engagement centered on persuasion and reasonable negotiation, not force. THE FEDERALIST PAPERS 1. Who were the 3 principal authors of the "Federalist Papers"? JOHN (HIS HONOR) JAY, ALEXANDER (BULLSEYE) HAMILTON, AND “LITTLE JIMMY” JAMES MADISON 2. What was the reasoning behind publishing the "Federalist Papers"? EXPLAIN THE NEW CONSTITUTION, ANSWER QUESTIONS ABOUT WHAT WAS CREATED IN PHILLY, ALLAY FEARS OF THE POPULATION OVER A STRONGER NATIONAL GOVERNMENT, AND DRUM UP SUPPORT FOR RATIFICATION 3. Main Themes of the Federalist Papers: Energy A major goal of the proposed constitution was to create a government with sufficient energy to rule effectively. By energy, the authors of the federalist papers essentially mean the power to address national problems and perform the proper functions of government. Union The authors of the Federalist papers argue vigorously in defense of the need for a union of all thirteen states. In the early years of American independence, many in America wanted the states to become sovereign countries only loosely connected with one another. The Federalist argues that the liberty of Americans depends on them maintaining their national unity. Delegated Authority This is one of the central principles of republican government. Delegated authority refers primarily to the people giving the authority to make and implement laws to elected representatives. Separation of Powers A major goal of the Constitution’s authors was to ensure that no one branch of government had enough power to become tyrannical and violate the rights and liberties of the people. By distributing power among different branches of government, the founders hoped to prevent one branch from dominating all the others. Checks and Balances Closely related to the theme of separation of powers, checks and balances refers to the specific ability of the three branches of government to limit the use of powers by one another. Each branch is granted specific powers over the other two branches, with no one branch able to usurp power from its fellows. Federal Government Federal government refers to a separation of powers between a central, national government and inferior political entities. In the US, power and responsibility is shared between state governments and the national government. Republican Government The essence of republican government is representation in a legislature. The people elect representatives who then decide on public matters. Republican government was the ideal towards which the founders strove. http://www.gradesaver.com/the-federalist-papers/study-guide/major-themes/ The Federalist No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments Independent Journal Wednesday, February 6, 1788 [James Madison] To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other -- that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority -- that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing a hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle. PUBLIUS 1st - POPULAR SOVEREIGNTY 1. What does this term mean? “Sovereignty” means the right / power of a government to rule. Specifically it means having supreme, independent authority (power) over a group of people in a territory. “Popular” means the people. So putting it all together, popular sovereignty means that the people have the power over the government. The people give their consent to the government according to Thomas Jefferson. The distinguishing feature of democracy is that government authority is derived from the people. 2. In terms of a democratic government, popular sovereignty means a system of government wherein political power and authority comes as a result of winning free elections in which all adult citizens are allowed to participate. A system of government in which elected representatives exercise power but are responsible to the voters. 3. So how does this term Popular Sovereignty relate to politics? IT IS ALL ABOUT ELECTIONS. In the US, we have over 78,000 elected positions from the national to the state to the local level. 4. What is the Primary Control on our government officials? Free, Fair and Competitive Elections – Every official in government has the same goal – to stay in office / retain power ELECTIONS IN THE UNITED STATES I. US ELECTORAL PROCESS 1. Primary Elections are held in the Spring of each year and the General Election is done on the Tuesday after the first Monday in November. National Offices are done in even number years and state and local elections are held in odd numbered years or in midterm (non-presidential election) years. 2. US elections For Congressional offices (House and Senate) and for state officials are decided by a system called First Past the Post, Single Member District, Plurality Elections. This means that the citizens directly elect their leaders by voting in their state or district for one person to represent them in the specific political office. The winner of the election is the candidate that gets the most votes total which is called a Plurality. US elections are not determined by which candidate gets a majority of the votes, just by the person with a plurality of the votes even if it is less than 50%. Just get the most votes and you win. II. PRESIDENTIAL ELECTIONS – Indirect with the Electoral College making the final choice based on the popular vote state by state. III. CONGRESSIONAL ELECTIONS GENERAL ELECTION INFORMATION 1. 2. 3. 4. The United States has regularly scheduled elections. They are set in advance and at fixed intervals. Should the United States move to a system with Votes of No Confidence like in the UK and Israel? The United States electoral system is based on FIXED TERMS OF OFFICE. This means that the length / term of office is specified and not indefinite. The United States electoral system also has STAGGERED TERMS OF OFFICE for some positions. This means that not all members of a branch are up for reelection at the same such as the U.S. Senate. ELECTIONS FOR THE HOUSE OF REPRESENTATIVES A. Size and Term of Office? B. When are the House elections? 5. RUNNING FOR THE SENATE A. SIZE and TERM OF OFFICE? B. When are the Senate Elections? 1.) Why are the Senate elections set up in this way? 6. The CENSUS – Constitutional requirement that every ten (10) years we count the number of people living within the US, within each state, and within the local governmental units inside the states. Why? Because the number of seats / votes that each state gets in the US House of Representatives and in the state legislatures is based on the size / population of each. So we need an accurate count of the population on a regular basis. The Census also allows us to calculate the number of Electoral Votes that each state gets. 7. WHAT IS MEANT BY THE INCUMBENCY ADVANTAGE? What does this Graph tell us about Congressional Elections? What causes this statistical result? Separation of Powers with Checks and Balances The Founders understood the principle expressed by the British historian, Lord Acton, “All power tends to corrupt; absolute power corrupts absolutely.” Through the complex system of checks and balances developed in the U.S. Constitution, they sought to assure that no person or branch of government could exercise unrestrained power. As James Madison advocated in Federalist No. 51, ambition should counteract ambition in a fashion that advances the public good. “The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788). James Madison theorized that as it is the Constitution that grants each branch its power, honorable ambition that ultimately serves the highest interests of the people could work to maintain the separation. The Founding Fathers were well-acquainted with a long-held tenet of government: the accumulation of power by a single person or body of government is the greatest threat to liberty. In fact, a celebrated feature of the Constitution, the separation of powers doctrine, developed over the course of many centuries. As early as 350 B.C., Greek philosopher Aristotle observed in the Politics that every government, no matter its form, performed three distinct functions: “the deliberative, the magisterial, and the judicative.” In modern terminology these activities correlate, respectively, to the legislative (lawmaking), executive (law-enforcing) and judicial (law interpretation) functions of government. While Aristotle identified these basic powers common to all governments, he did not necessarily suggest that they should be exercised by entirely different branches. The principle that major governmental functions should be divided into different branches would be advanced centuries later. The French philosopher Baron de Montesquieu, “[t]he oracle…the celebrated Montesquieu,” as James Madison referred to him, advocated three distinct and separate branches in which the general powers of government should be lodged. While John Locke made the case for separating the legislative and executive powers, Montesquieu provided the Founders with a convincing defense for an independent judiciary: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals” (Baron de Montesquieu, Spirit of Laws, 1748). It was Montesquieu’s vision of a truly separated, tripartite system that the Founding Fathers would come to adopt at the Constitutional Convention. Article I, Section 1 of the U.S. Constitution vests legislative powers in a Congress of the United States, itself separated into a House of Representatives and a Senate. Article II, Section 1 vests executive authority in a President of the United States. Article III, Section 1 vests judicial authority in a single Supreme Court of the United States and “in such inferior Courts as the Congress may from time to time ordain and establish.” During the ratification debates from 1787 to 1788, some critics charged that upon close inspection the separation of powers in Articles I-III of the Constitution were not as complete as Montesquieu appeared to advocate and would tend toward an accumulation of power in one branch or another over time. The president, for example, has the power to accept or reject a bill duly passed by Congress, a seemingly legislative power. For its part, the Senate may approve or reject a presidential appointment to his own branch, a seemingly executive power. The Constitution’s critics were right; the Framers did not propose a “pure” separation of powers. Madison retorted that a “pure” separation of powers was neither what Montesquieu intended nor practical: “[Montesquieu] did not mean that these [branches] ought to have no partial agency in, or no control over, the acts of each other. His meaning…can amount to no more than this, that where the whole power of one [branch] is exercised by the hands that hold the whole power of another, the fundamental principles of a free constitution are subverted. [T]here is not a single instance in which the several [branches] of power have been kept absolutely separate and distinct” (James Madison, Federalist No. 47, 1788). The French philosopher Baron de Montesquieu advocated three distinct and separate branches in which the general powers of government should be lodged. Implicit in Madison’s argument was an interesting challenge to the very doctrine of separation of powers: what will prevent the accumulation of power in the absence of pure separation? The answer was to be found in a unique feature of the Constitution: the pairing of separated powers with an intricate system of checks and balances designed to give each branch fortifications against encroachments by the others. The “Madisonian Model,” as it is now generally called, gave genuine and practical life to both the observation of Aristotle and the vision of Montesquieu. At the heart of the Madisonian Model is ambition. A desire for power, influence, and authority is embedded deeply in human nature. For many people, the very word “ambition” smacks of greed, corruption, or a win-at-all-cost mentality. Madison saw it differently. Ambition, if properly harnessed by good judgment and rooted in an appreciation for the benefits of constitutional republicanism, could work to advance the public good. It could be beneficial not only to the effective separation of powers but to limited government and liberty itself. In Federalist No. 51, James Madison stated: “The great security against a gradual concentration of the several powers in the same [branch], consists in giving to those who administer each [branch], the necessary constitutional means, and personal motives, to resist encroachments of the others…Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place” (James Madison, Federalist No. 51, 1788). In our system of separated powers, each branch of government is not only given a finite amount of power and authority but arrives at it through entirely different modes of election. Madison theorized that as it is the Constitution that grants each branch its power, honorable ambition that ultimately serves the highest interests of the people could work to maintain the separation. In other words, since Congress is not dependent on the presidency or the courts for either its authority or its election to office, members will jealously guard its power from encroachments by the other two branches and vice versa. For Madison, this organization of powers answered the great challenge of framing a limited government of separated powers: “first enabl[ing] the government to control the governed…and in the next place, obling[ing] it to control itself” (James Madison, Federalist No. 51, 1788). What does Madison’s theory look like in practice? While it is the legislative branch that makes law, the president may check Congress by vetoing bills Congress has passed, preventing them from being enacted. In turn, Congress may enact a law over the president’s objection by overriding his veto with a vote of two-thirds of both the House and Senate. The Supreme Court can then check both branches by declaring a law unconstitutional (known as judicial review), but the Supreme Court itself is checked by virtue of the fact the president and Senate appoint and approve, respectively, members of the Court. Furthermore, both the president and federal judges are subject to impeachment by Congress for “treason, bribery, or other high crimes and misdemeanors” (United States Constitution: Article II, Section 4). The President may check Congress by vetoing bills Congress has passed. Congress may override the president's veto with a vote of two-thirds of both Houses. The Supreme Court can then check both branches by declaring a law unconstitutional. By and large, Madison’s model remains constitutionally intact, but many people wonder if our system still balances power, in reality and in practice, to the extent that he envisioned. Our checks and balances system reflects an understanding about republican government, held by many Founders, that the legislative branch should be the superior branch and, therefore, most in need of restraint. They reasoned that this is the case because “We the People” govern ourselves through the laws we give ourselves through our elected representatives in the legislative branch. “The legislative [branch] derives superiority… [i]ts constitutional powers [are] more extensive, and less susceptible to precise limits… [it] is not possible to give each [branch] an equal [number of checks on the other branches]” (James Madison, Federalist No. 48, 1788). Some observers maintain that this conception of the legislative as the predominant branch is obsolete in modern times. The executive and judicial branches have expanded their powers beyond the Founders’ expectations over time (i.e. executive orders, the role of the Supreme Court as the arbiter of laws at every level, not just the federal level.) Is Madison’s assumption of legislative superiority true today? If you were asked to pick a branch to describe as “most powerful” would your answer mirror Madison’s? Despite disagreement as to how well it has worked, one characteristic of the checks and balances system cannot be denied: it encourages constant tension and conflict between the branches. That conflict, however, is frequently beneficial, and our Constitution smiles upon it. II. Separation of Powers III. Checks and Balances 1. Explain “SEPARATION OF POWERS”: 2. Explain “Checks and Balances” – CHECKS AND BALANCES EXECUTIVE BRANCH – PRESIDENT AND THE BUREAUCRACY 1. Role – Execute (administer or carry out) the laws LEGISLATIVE BRANCH – CONGRESS – BICAMERAL – H OF R AND SENATE 1. Role – Make the laws and oversee the executive as it carries out the laws Action by Government 1. Congress passes a new law making it legal for the police to search student cars on school grounds JUDICIAL BRANCH – THE SUPREME COURT 1. Role – To interpret the law and uphold rule of law (justice) JUDICIAL REVIEW Constitutional Check on that action or power – What can the other branches do to stop that action? A. President can B. Supreme Court can 2. The President vetoes a law passed by Congress that would lower the income tax for everyone by 10% 3. The President issues an order to take all Muslims inside the USA and hold them in detention camps until the War on terror is over 4. The President picks Mr. Haley to be the new Secretary of Defense (head of all the US military) 5. The President picks Mr. Haley to be a new Supreme Court Justice A. Congress can 6. The Supreme Court declares a new law passed by Congress that would cut taxes by 10% unconstitutional 7. The President negotiates a treaty with North Korea to turn over all our nuclear technology. 8. The President orders the US army to move 10,000 troops into Syria in the Middle East A. Congress can propose an A. The Supreme Court can A. The Senate can A. The Senate can A. The Senate can A. Congress can 9. A judge takes money from a defendant and guarantees an acquittal (innocent verdict) A. Congress can 10. A court sentences a defendant to life in prison for a crime A. The President can THE THREE BRANCHES OF GOVERNMENT UNITED STATES VS. COMMONWEALTH OF PENNSYLVANIA THE LEGISLATIVE BRANCH 1. Role of the Legislative Branch? Pass / Make Laws / Ordinances / Statutes Oversight of the Executive and Judicial Branches – They are to make sure that the laws passed are executed / carried out by the Executive Branch properly. This is done through Congressional Committees and Hearings. Congress has subpoena power and can compel anyone to testify under oath about issues. 2. CHECKS AND BALANCES Checks on the Executive Branch Override a Veto Control the Budget – Power of the Purse Impeachment Senate gets to approve Presidential Appointments to the Cabinet and Executive Agencies by Majority Foreign Policy – Senate gets to approve all treaties by 2/3rds vote Checks on the Judicial Branch Senate gets to approve Judicial Appointments by the President by a Majority Vote Impeach Federal Judges Creates and can stop the jurisdiction of lower federal courts Can begin the Amendment process 3. Who is in Congress? Men and Women in the 112th Congress While the partisan composition of the Congress is fairly close to that of the electorate, there are larger disparities between the Congress and the general citizenry in term of sex and race. In the House, there are currently 362 men and 76 women. In the Senate, there are 17 women and83 men. Racial Composition of the 112th Congress (including Delegates in the House) U.S. House U.S. Senate White 361 96 Black 44 0 Hispanic 25 2 Asian 7 2 American Indian 1 0 At the PA STATE LEVEL –DEMOGRAPHICS OF THE TYPICAL PA LEGISLATOR: This is what the average legislator is like: white male college educated mid-40s upper middle class Protestant usually also self-employed businesspersons (most often lawyers, real estate brokers, or insurance agents) A recent count of legislators across the nation showed that, out of 7,461 state legislators, only 1,200 are women, less than 500 are Afro-American, and less than 130 are Hispanic. 4. How do Members of Congress Behave? A. In a decentralized, individualistic institution such as Congress, it is not obvious how its members will behave. B. What is meant by the word “behavior”? Generally behavior means how they vote. But members can influence legislation by more than voting on bills. It comes in the bills that members propose, how they vote on bills, how they conduct hearings, how they mark-up bills in committee, and how they offer amendments to bills. Proposed by others. C. THREE THEORIES about how members of Congress behave: 1.) REPRESENTATIONAL VIEW – a/k/a THE DELEGATE OR INSTRUCTED DELEGATE THEORY a.) It is based on the assumption that members want to get reelected so they vote to please their constituents. The member’s own personal opinions do not matter. Statistics show that there is strong correlation on some issues like civil rights and social welfare, but not in other areas like foreign policy. Problem: Public opinion is not strong and clear on all issues and constituents are often divided on important issues RESULT: It is still a powerful influence but not the sole predictor of behavior. 2.) ORGANIZATIONAL VIEW a.) It is based on the assumption that since most constituents do not know how their legislator has voted, it is not essential to please them. It is more important to please fellow members of Congress, whose goodwill is valuable in getting things done and in acquiring more power in Congress. LOGROLLING FOR EXAMPLE Members of Congress behave and react according to cues that they receive in Congress and not from their constituents. Cues come from their political party, colleagues who share ideological positions, and from members of a sponsoring committee (EX: House Armed Services Committee influence over a bill for a new weapons system that most members do not understand) 3.) ATTITUDINAL VIEW OR TRUSTEE THEORY a.) It is based on the assumption that there are so many conflicting pressures on members of Congress that they cancel each other out, leaving the member virtually free to vote on the basis of their own beliefs or ideology b.) Members act in the broader interests of society as opposed to the specific interests of their constituency BOTTOM LINE – WOULD THE FRAMERS BE HAPPY ABOUT TODAY’S MEMBERSHIP BEHAVIOR? PROBABLY IN LIGHT OF THE FACT THAT THE FRAMERS WANTED IT THIS WAY. THEY FELT THAT THE REPRESENTATIVES OF THE PEOPLE SHOULD REFINE, NOT REFLECT, PUBLIC WISHES AND MEDIATE, NOT MIRROR, PUBLIC VIEWS. 5. Organization of the Legislative Branch a.) The Legislative Branch at both the national and state level (with one exception) is organized under the principle of BICAMERALISM. “BI” means 2 and “Cameral” means houses so it is a 2 house legislature. House of Representatives – Based on population with a total of 435 seats set by Congress in 1911. Senate – Based on equality – 2 per state Each House works by MAJORITY RULE Each House has to pass the same bill in identical fashion before it goes to the President for his approval and signature. Read the following passage: Unicameralism vs. Bicameralism Except for Nebraska, all State legislatures are bicameral today. Bicameralism has been the dominant pattern for two major reasons. The first is the influence of both English and colonial experience. The second was the tendency among the newer States who joined the United States to follow the lead of the original States and the National Government. The first colonial legislatures were typically unicameral. The elected representatives commonly sat with the governor and his council in the making of colonial laws. As the popularly elected legislators gained political power in most of the colonies, the governor’s council took on the role of a second, upper chamber. Thus, well before the Revolution, most of the colonies had bicameral bodies structured much like the British Parliament. Within only a few years, all 13 of the new States had established two-chambered legislatures. Unicameralism is often recommended as one of the major steps that could raise the quality of State legislatures, their procedures, and their product. Those who support bicameralism have long argued that one house can act as a check on the other in a two-chambered body and so prevent unwise legislation. The critics of bicameralism point to the many examples where that theory has not worked well in practice. Indeed, very often the real check on “hasty and ill-considered legislation” comes from places outside the legislature—from the governor’s veto, from coverage by the news media, and from public opinion. It has not come from having a second house in the legislature. Critics of bicameralism argue that in the complicated structure and procedures of a two-house system, special interests have more opportunities to block popular legislation. As an example, they point to conference committees, which are unnecessary in a unicameral legislature. The advocates of unicameralism also point out that with two chambers involved in the lawmaking process, it is almost impossible to place the responsibility for some legislative action, or inaction, on any one group of lawmakers. With only one house to watch, the people can more readily discover and understand what the legislature is doing. In a one-house system, the legislature itself, they add, can more easily watch lobbyists’ activities for special interest groups. Although the Nebraska experience hasn’t proved a cure-all, it appears to have worked well for over 50 years. Legislative costs been cut, greater efficiency has been achieved, and lobbyists’ influence has reduced. A generally higher caliber of legislator has been chosen. Moreover, the typical legislator has been more responsive to his or her constituents than under the old house system. All in all, the weight of the argument favors unicameralism. Nevertheless, proposals to adopt it elsewhere have made almost no headway since the Nebraska reform. Both tradition and inertia stand on the side of bicameralism. So, too, does a lack of knowledge and interest on the part of the general public. 31 b.) LEADERSHIP – There are certain formal leadership positions required under the State Constitutions. Speaker of the House of Representatives Vice President of the Senate and the President Pro Tempore of the Senate US Constitution and c.) COMMITTEES – Each house of the Legislative Branch is divided into small Committees. It is impossible for one body made up of 100 or 435 members to act as a single body to propose, to discuss, to debate and to vote on Bills / Ideas for Laws. Nothing would ever get accomplished. So the Members of Congress are divided into a series of Committees that do the actual work of writing, discussing and debating the value of Bills. Standing Committees – Specific permanent subject matter committees whose job is to write, to discuss, to debate, and to vote on Bills. US SENATE STANDING COMMITTEES Agriculture, Nutrition, and Forestry Appropriations Armed Services Banking, Housing, and Urban Affairs Budget Commerce, Science, and Transportation Energy and Natural Resources Environment and Public Works Finance Foreign Relations Health, Education, Labor, and Pensions Homeland Security and Governmental Affairs Judiciary Rules and Administration Small Business and Entrepreneurship Veterans' Affairs US HOUSE OF REPRESENTATIVES STANDING COMMITTEES Agriculture Appropriations Armed Services Budget Education and the Workforce Energy and Commerce Ethics Financial Services Foreign Affairs Homeland Security House Administration Judiciary Natural Resources Oversight and Government Reform Rules Science, Space, and Technology Small Business Transportation and Infrastructure Veterans’ Affairs Ways and Means Intelligence CONFERENCE COMMITTEE – An essential joint committee made up of members of both Houses whose job is to resolve differences between versions of a Bill that have been passed in the House and in the Senate. Many Bills go through our Republican led House and our Democratic led Senate and come out looking very different with conflicting provisions. No Bill goes to the President that has not passed both Houses in the exact same form. So the Conference Committee brings members of both Houses together and they attempt compromise the 2 versions of the Bill into one form. Then it goes back to each House for a final vote. If passed by a Majority of both Houses, it then goes to the President. This committee is essential for ending Gridlock in Congress. 32 6. THE US CONGRESS VS PA GENERAL ASSEMBLY US CONGRESS Legislative – Make the Laws and Oversee the Executive TOPIC Role? 2. 3. Name? Organization – Bi or Unicameral? Name of Upper House? Term of Office for the Upper House? Size of the Upper House? Term Limits? Qualifications – Minimum Age for membership? Method of Election 4. 5. 6. 7. 8. Directly elected by state in a plurality election – Plurality Election PA GENERAL ASSEMBLY Legislative – Make the Laws and Oversee the Executive 1. 9. Directly elected by the citizens of their Congressional district – Single Member District Plurality Election 10. Leadership – Who is the President of the Upper House? Controls the agenda 11. Who controls the agenda – makes all the major decisions over Bills? 12. Special Powers of the Upper House? 13. Name of the Lower House? 14. Term of Office for the Lower House? 15. Size of the Lower House? 16. Term Limits? Directly elected by the citizens of their Congressional district – Single Member District Plurality Election 17. Qualifications – Minimum Age for membership? 18. Method of Election – THIS IS THE VOICE OF THE PEOPLE AND RESPONDS DIRECTLY TO THE WILL OF THE PEOPLE. 19. Leadership – Who is the head of the Lower House and controls the agenda? 20. Special Powers of the Lower House? 33 Directly elected by the citizens of their Congressional district – Single Member District Plurality Election EXECUTIVE BRANCH OBJECTIVE: Develop an understanding of how the Executive Branch at the Federal and State Levels are Organized and the role / powers of the Chief Executives 1. Basics The Executive Branch of the federal government and of each state is responsible for administering the dayto-day operations of government, providing services, and enforcing the laws. “Executive Power” means the power to execute the Laws – to enforce the laws, to carry out the laws, and to administer the laws. The President is the head of the federal executive branch and is elected by the Electoral College. States are led by a Governor, elected by statewide ballot for a 4 year term in most states. At the federal level, the President is supported by millions of people that work in the Bureaucracy such as in the 14 Cabinet level positions along with the numerous agencies, departments, and commissions that are charged with carrying out the laws. At the state level, the Governor is supported by other elected officials such as the Lieutenant Governor, Attorney General, Auditor General, and State Treasurer, along with numerous other appointed bureaucratic officials. 2. Key Concepts: A. The President is INDIRECTLY ELECTED. The voters make their choice and then the Electoral College determines the actual winner of the election. The Electoral College is based on the popular vote state by state. B. The voters of the state directly elect their State Governor. In Pennsylvania, the Governor is elected for a 4 year term with a limit of 2 succeeding terms. C. Roles of the Chief Executive US PRESIDENT Chief Executive Chief Legislator (Legislative Powers) Commander-In-Chief Chief Diplomat Chief Jurist (Judicial Powers) Chief Economist (Financial matters) Chief of State Chief / Head of the Political Party Leader of the Free World PA STATE GOVERNOR CHIEF EXECUTIVE / HEAD OF STATE: Execute the Laws / Enforce the State Constitution / Maintain law and order /Manage the Bureaucracy / Leader of the State CHIEF LEGISLATOR – Veto and Line-Item Veto / Propose laws / Prepare Budget CHIEF JURIST – JUDICIAL ROLE – Clemency Powers such as the Pardon, Reprieve, and Commutations MILITARY LEADER – Governor is commander-in-chief of the state’s National Guard SPOKESPERSON FOR THE STATE LEADER OF POLITICAL PARTY 34 D. THE EXCUTIVE BRANCH – No Single person can possibly execute all of these Roles. So the Chief Executive gets a large staff and series of offices to help him called the Bureaucracy. US PRESIDENT – FEDERAL BUREACURACY 1.) The Vice – President – serves as 2nd in the line of succession and balances the Presidential Ticket. Also serves as the President of the US Senate and holds the tie-breaker vote. 2. The Cabinet Agriculture Commerce Defense Education Energy Interior Justice Labor Health and Human Services Homeland Security Housing and Urban Development State – Most powerful and 4th in line of LIEUTENANT GOVERNOR – 2nd in command to the Governor and elected from the same party as the Governor 1.) 1st in line of succession should the Governor, die, resign or get impeached. 2.) Serves as the President of the PA Senate (tiebreaker vote) and serves as the Chair of the Board of Pardons and the State parole Board ATTORNEY GENERAL – The state’s chief legal officer and law enforcement officer so you must have a law degree to serve in this role. 1.) AG provides legal advice on any matter to the Governor and the state agencies. His opinions have the same effect as law. 2.) AG represents the state in all legal cases and reviews all legal documents and contracts for the state 3.) AG handles consumer protection issues through the Consumer Affairs Office 4.) Serves on the Board of Pardons AUDITOR GENERAL 1.) The “Watchdog of the State Treasury” – ensures that the state receives all the money / revenue to which it is entitled and that the money is disbursed properly. Power to conduct AUDITS of each part of the state government. 2.) Make sure that state officials are not wasting state resources STATE TREASURER 1.) Oldest Independent executive office in PA 2.) The custodian for all public funds. The ST handles the receipt, deposit, investment, and dispersal (payment of) of the Commonwealth’s money 3.) Handles welfare and unemployment payments for the state 4.) Must also approve and sign for any long term loan taken out by the state succession Transportation Treasury Veterans Affairs 3. Executive Office of the President Chief of Staff Press Secretary White House Office Council of Economic Advisers Council on Environmental Quality STATE BUREAUCRACY Some of these positions are independently elected and serve 4 year terms. Executive Residence National Security Staff Office of Administration Office of Management and Budget Office of National Drug Control Policy Office of Science and Technology Policy Office of the United States Trade Representative 4. Independent Executive Agencies and Departments Alphabet Soup – CIA, FBI, DEA, FCC, NTSB, SEC, EPA, IRS, NASA, et al. Other Parts of the PA Bureaucracy under the direct control of the Governor Agriculture | Banking | Community and Economic Development | Conservation and Natural Resources |Corrections | Education | Environmental Protection | Health |Labor and Industry | Military and Veterans' Affairs | Public Welfare | Revenue | Transportation | List of State Agencies 35 3. Compare the US Executive with the PA State Executive US – Federal Government Topics PA State Government 1. Chief Executive – Head of the Executive Branch 2. Term of Office and Maximum # 3. Qualifications 4. Role 5. Legislative Powers 6. Military powers 7. Foreign Policy Powers 8. Judicial Powers 36 JUDICIAL BRANCH - Compare and Contrast the Federal Judicial Branch with the PA Court System 1. BASIC TERMINOLOGY: Jurisdiction – This is a legal term that refers to the type of cases that a court may hear. The court’s authority to hear cases. Original Jurisdiction: The authority of a court to hear a case “in the first instance” - to hear trials Appellate Jurisdiction: The authority of a court to review a decision of a lower court. Civil Cases: Disputes that are not criminal in nature but that involve 2 or more individuals or an individual against a governmental entity or official Criminal Cases: A case involving a violation of the crimes code Summary Offenses: Low level violations of the criminal code that usually involve punishment in terms of a fine or probation. EX: Loitering and curfew violations Misdemeanors: A minor crime – the penalty is a fine or imprisonment for a short time, usually less than a year in jail. Felonies: A serious or major crime – the penalty can range from death to imprisonment for over 1 year in jail. DIAGRAMS OF THE FEDERAL AND PA COURT SYSTEMS US / FEDERAL COURT SYSTEM PENNSYLVANIA COURT SYSTEM JUDICIARY BASICS 1. The ROLE / FUNCTION of the court system is to interpret the laws and to resolve disputes. 2. It is an ADVERSARIAL SYSTEM 3. Federal Judges are appointed by the President and confirmed by a majority vote of the Senate. 4. Qualifications to be a Judge in Pennsylvania: -Citizen of the United States -Resident of the State -Must be a member of the Bar of the Pennsylvania Supreme Court Exception: Magisterial District Justices do not have to be lawyers 37 5. Election: Judicial elections occur in odd-numbered years. A person is elected a judge in a state-wide or county wide election by party designation. Judges run for reelection under the system of “Merit Retention”. They run for reelection under “yes – no” vote without ballot preference as to political affiliation. However, the mandatory retirement age is 70 years. JUDICIARY BASICS – COMPARE US AND PA COURTS US COURTS To interpret the laws and to resolve disputes and guarantee Rule of Law TOPICS 1. Role PA COURTS To interpret the laws and to resolve disputes and guarantee Rule of Law. JUDICIAL REVIEW 2. Main Power under Checks and Balances 2. Highest Court JUDICIAL REVIEW 3. # of Justices 4. Term of Office 5. Method of Selection –how one becomes a judge 6. Jurisdiction 7. Mid-Level Court – Appellate Jurisdiction 8. Trial Courts 9. Trial Court Jurisdiction 10. Lowest Courts 11. Jurisdiction of Lowest Courts 38 Read the following passage and answer questions #1 to 5 that follow. Lettuce Lady Loses in Court She tossed the lettuce, and a cop tossed her a ticket. Yesterday, a woman who says lettuce is not litter tried to make her case to a county court judge, and she didn't come to court empty-handed. Dawn Higgins doesn't like leafy spinach on her salad. "It looks like something that came off a tree." So last October when she and her daughters stopped for a quick bite at McDonald's, and then pulled into a nearby parking lot so she could eat, she picked off the leaves -- and tossed them out the car window. That's when police officer Thomas Mahalick spotted her. "She was throwing items out of her vehicle. They were lettuce [leaves]." [Ms. Higgins] said: “it's not littering. It's lettuce." He eventually ended up citing her for what were 6 leaves from her McDonald's salad -- no dressing. After being found guilty of littering by the Magisterial District Judge, the dispute over whether lettuce is litter was appealed to the Common Pleas Court. Higgins' attorney says the case is ridiculous. "Not to use legalese, but it's a "de minimis infraction." The statute says the scattering of rubbish or refuse on private property or roads or on any type of surface, but it doesn't define what rubbish is." He says Pennsylvania case law provides only one precedent -- a case in which a cigarette was deemed not to constitute "rubbish." "So our argument was simply that 6 leaves from a salad which is biodegradable -- and may have blown onto the grass -- were even more minimal than a lighted cigarette." Her attorney says she may have been cited more for her attitude than her actions. "I did have a little bit of an attitude, but who wouldn't? I think anyone in their right mind would have been [angry] just like I was." He cited her $50 dollars, plus court costs, plus a $173 fine for those leaves. Probably the most expensive McDonald's salad ever sold. The officer said, "If it would've been any other outcome, it would've shown the public it's OK to litter." The judge agreed with the [officer], and Higgins was ordered to pay the fines. All-together she's had to pay more than four hundred dollars. Higgins says she'll appeal next to Superior Court. “I feel terrible. I think I got robbed." 39 1. Which was the first court in which this woman’s littering charge was heard? a. Superior Court b. Magisterial District Judge (District Justice) c. Criminal Court d. Court of Common Pleas e. Commonwealth Court 2. Based on the context of the article and Ms. Higgins’ lawyer’s comments, what is a “de minimus infraction”? a. an action for which the fine is less than $500 b. an action which is unworthy of the law’s attention c. a law about littering d. a law about smoking in public e. failure to pay the minimum fine 3. Based on the context of the article what is “precedent”? a. laws about minor crimes b. laws about major crimes c. a legal guideline establishing how other courts should interpret the law in cases with similar issues or facts d. the legal guidelines applied to Magisterial District Judges only e. a rule about which court should handle a particular type of case 4. What appeals court would first handle this case? a. Criminal Court b. Magisterial District Judge (District Justice) c. Commonwealth Court d. Supreme Court e. Court of Common Pleas 5. What issue was the basis for higher courts hearing Ms. Higgins’ challenge to her citation? a. Whether the Magisterial District Judge had authority to rule on this case. b. Whether the Court of Common Pleas had authority to rule on this case. c. Whether or not a person is allowed to disagree with a police officer. d. Whether or not a person is allowed to disagree with a judge. e. Whether or not throwing away six spinach leaves was littering. 40 IV. FEDERALISM WHO HAS THE POWER? RELATIONS BETWEEN LEVELS OF GOVERNMENT I. OBJECTIVES: 1. Define Federalism 2. Identify the main divisions of powers between the states and the national government. 3. Describe key changes in federalism from the time the Constitution was first ratified. 4. Explain how federalism affects politics. II. DESCRIBE HOW OUR SYSTEM OF GOVERNMENT IS ORGANIZED 2. FEDERALISM - Definition? 2 parts A. 1ST part – A division of the total power of government between the 3 levels of government, national, state and local B. 2nd Part – Each level exercises direct control over people’s lives 3. 4. Alternates to a Federal System? A. Unitary State – What is that? A system of government organization in which all power is held in one place, the national government (the UK) B. Confederation – What is that? A loose association of sovereign states which come together for one purpose like defense or economic reasons (the UN and the EU) Why did Framers create a Federal System of Government? A. It protects against tyranny – another check and balance by spreading out govt power B. In 1787, people were more loyal to their state governments and not the new national government C. It allows more people to participate in the democratic process – over 78,000 elected positions D. It allows more experimentation at the state level. – States are like laboratories for public policy making Georgia – 1st state to give 18 year olds the right to vote Nevada – state sponsored gambling Oregon – Physician Assisted Suicide and elections by mail Massachusetts – Same sex marriage Wisconsin – welfare changes III. DIVISION OF POWERS 1. 2. Federalism is all about the powers of the government. The Constitution grants certain specific powers to the National Government and the 10th Amendment reserves all other powers to the States or to the People. What powers are there in the Federal System? A. Delegated Powers – all those powers granted by the Constitution to the National Government – 3 types: 1.) EXPRESS OR ENUMERATED POWERS – What does this mean? Powers granted specifically to the National Gov’t (L, E or J) 2.) IMPLIED POWERS – What does this mean? Powers inferred from express powers that allow Congress to carry out its functions / duties Congress can do everything necessary and proper to carry out its functions a.) Where is this found in the Constitution? Article I, Section 8, Clause 13 of the Constitution called the Necessary and Proper Clause – a/k/a the Elastic Clause 3.) INHERENT POWERS – What are these powers? Powers of the national government in the area of foreign affairs 41 EX: Do you want Wisconsin to negotiate a trade agreement with Canada? B. What are the RESERVED POWERS? Where in the Constitution? The 10th Amendment – All powers NOT specifically granted to the national gov’t under the Constitution are reserved to the states or to the people 1.) List the examples of state powers: C. What are the CONCURRENT POWERS? Powers that are shared by both the national and state government 1.) List examples of Concurrent powers: IV. EXAMINE THE HISTORY OF FEDERALISM 1. The division of powers and responsibilities between the States and the National Government has been like a roller coaster ride. 1787 – 1930 State Power was High and National Government Power was Low 1930 – 1994 State Power was Low and national Government Power was High 1994 – Today –State Power rising and National Power decreasing (Sort Of!!!) 2008 - ??? – Potential for an increase in the power and role of the national government FEDERALISM IS MUCH DIFFERENT TODAY THAN ORIGINALLY FORESEEN BY THE FRAMERS – It all depends on the ideological beliefs of the 9 people who sit on the US Supreme Court. V. INTERSTATE RELATIONS 1. Explain the Full Faith and Credit Clause (Article IV Section 1). Each state must recognize and enforce the civil judgments, public records (documents) and acts of all other states. Full Faith and Credit: Each state must respect the legal actions and legal documents of other states. Examples: Marriages, divorces, & adoptions Business transactions Car registration and driver’s licenses * This applies only to civil law, not criminal laws of other states. 2. Explain what is meant by Interstate Privileges and Immunities (Article IV Section 2). Each state must grant the same P & I (rights and benefits) to citizens of other states – EX: Protection of laws, access to courts, right to work, right to be free from discrimination Privileges and Immunities: Each state must extend the same rights, privileges, and protections to citizens of other states that it extends to its own citizens. VIII. FISCAL FEDERALISM - REGULATORY FEDERALISM – FEDERAL GRANTS AND MANDATES 1. What is a Federal Mandate? A federal government requirement or obligation placed on the states that states have to comply with. Sometimes it comes with money to pay for the program but may not. 2. What are Federal grants? Federal Government money given to the states to run or to pay for some program. 3. What are the purposes of federal grants? To spread the wealth like Robin Hood / To provide states with money for programs / To create national standards / To allow the federal government more control over state 42 43