Constitutional Foundations
February 5, 2009
PS 426
Context for the Constitutional Convention
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British Parliament
State legislatures
Continental Congress -- Articles of Confederation
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Articles created a national unicameral legislature with
lawmaking power, with each state having one vote. Weak
internal procedures and structure. No executive branch or
national courts: states responsible for implementing laws.
Desire to strengthen the national government while
preventing majority tyranny. Separation of powers and
checks and balances.
The Basic Structure
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Problem of representation:
large state/small state
debate.
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Virginia Plan: strong national
government with
representation based on
population;
New Jersey Plan: equal repr.
Connecticut Compromise:
bicameralism, Senate based
on equal representation,
House based on population.
CT as median voter.
STRUCTURE, cont.
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Bicameralism — Does small state bias
in Senate make a difference today?
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funding formulas
issues of interest to farmers and rural
people (guns, grazing rights)
do small states have a leadership
advantage?
Impact on the electoral college.
Each chamber makes its own rules of
procedure, elects its own leaders.
Senate as a continuing body, House
newly constituted every two years.
Checks and Balances
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Complete separation from executive
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separate elections, separate fixed term length
no simultaneous service (prevents a parliamentarystyle system) for members of Congress and the
executive branch or courts. However, executive
branch members may serve on federal courts.
limited executive use of prosecutorial power against
Congress (immunity). William Jefferson case.
Check each other: impeachment power, legislative
veto and executive veto power.
POWERS OF CONGRESS: Enumerated
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Many were specific responses to Confederation
Congress’s problems.
Coin money, establish roads and post offices, grant
patents, create the court system, raise and support
armies, etc.
“Power of the purse” is central. Taxing and spending.
“regulate commerce . . . among the several states”
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19th Century definition: Narrowly interpreted, inter-state/intrastate commerce.
Post-New Deal definition: broad, basis for Civil Rights Act of
1964 and many other laws. U.S. v. Lopez (1995) and United
States v. Morrison (2000) signify a new trend.
POWERS OF CONGRESS: Implied and
Shared
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Implied powers
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Elastic clause: “necessary and proper”
McCulloch vs. Maryland (1819).
Shared powers
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judicial selection
confirmation of executive appointments
creating and funding executive branch agencies
foreign policy/defense; Congress declares war
and “raises and supports armies,” but President is
commander-in-chief. Senate ratify treaties.
LIMITATIONS ON CONGRESSIONAL
POWER
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In the original text of Constitution: no ex post facto laws,
bills of attainder, or grants of title of nobility.
The Bill of Rights and other constitutional provisions
serve as important checks on the scope of legislation:
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examples of Federal laws struck down as unconstitutional:
original Federal Election Campaign Act (1976), anti-flag burning
law (1990), Line-Item Veto Law (1998), Religious Freedom
Restoration Act (1997), Violence Against Women Act (2000).
Separation of powers: “dual security” Other branches
and the states (veto power, judicial review and
federalism; good examples of the latter are education,
law enforcement, and election administration).