6 Principles of the Constitution
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Popular Sovereignty
Limited Government
Separation of Powers
Checks & Balances
Federalism
Judicial Review
Popular Sovereignty
• People are the
source of
government’s
power; government
is based on the
consent of the
governed.
Separation of Powers
A.
To Madison, tyranny was
govt. that controlled all 3
branches of gov’t. Framers’
answer: division of power
among legislative, executive,
and judicial branches.
B. This system diffuses power
instead of concentrating it.
C. Checks and balances were
instituted to thwart danger of
one branch combining forces
with another branch .
D. Influence of Montesquieu.
Checks and Balances
A.
18th century view of govt. as something to be restrained, and
modern view of govt. as something to be used for the common
good.
B.
System of restraints in which each branch can check the other
two(Reflects fear of tyranny.) Checks and balances serve as
means of intentionally building inefficiency in order to prevent
govt. abuse of power. Examples: veto, veto override; appointment
and confirmation; treaty-making and ratification; defense funding and
Commander-In-Chief role.
C.
Political independence: no branch is dependent upon the
other two for election (exception: judges are appt'd by President, but
life terms for judges ameliorate presidential influence.)
D.
Staggering of terms within each branch (midterm congressional
elections allow voters to check the President halfway into his/her term.)
Checks and Balances
Checks and Balances—Weakened?
Growth of Federal Bureaucracy
Development of numerous
agencies w/legislative,
executive, and judicial
functions.
Example: Congress established an
IRS to collect taxes, and then
granted the IRS authority to
help write the tax code, enforce
the tax code, and settle disputes
over the tax code.
-- Thus, growth of bureaucracy
has caused a weakening of
checks and balances.
Checks and Balances—Weakened?
Emergence of U.S. as world
power after WWII:
A. Areas of "national interest"
extend around the world.
-leader of free world.
-only remaining superpower
after Cold War
B. These responsibilities need to
be dealt with in a strong and
efficient manner --->power has
concentrated in Executive
Branch ("imperial presidency")
weakening checks and
balances.
Limited Government
A. Constitutional government:
gov’t. has only those powers
expressed in Constitution.
B. Bill of Rights: safeguard
against possible tyranny from
new, stronger, more distant
government. Amendment 10
reflects view that states would
have substantial powers--the
central gov’t. could exercise only
those powers delegated to it by
the Constitution. States would
have all else (Reserved Powers.)
C. Free elections
ORIGINS OF AMERICAN FEDERALISM
Federalism: division of power between
the national gov’t. and state gov’ts.
Both get their powers from a
Constitution, not each other.
Reasons for federal system in U.S.
A. Unitary system was undesirable -- too
reminiscent of British rule. Fear of strong,
distant gov’t.
B. Confederate system undesirable -- too
reminiscent of Articles.
C. Allows unity, but not uniformity -allows for differences among states.
D. More suitable for geographically large
and heterogeneous nation -- allows for
differences among people.
E. More likely to check tyranny.
Judicial Review.
A. Power of courts to strike down laws or
government actions as unconstitutional.
B
C.
Not explicitly provided for in Const., but need
for interpretation most logically falls to the
courts.
Established by
Marbury v. Madison, 1803.
1. Facts of case: the end of Federalist control
of govt. and appointment of the "midnight
judges," including Marbury ---> Jefferson
ordered Madison to not deliver commissions
to these judges --->Marbury's request for a
writ of mandamus (under Sect. 13 of
Judiciary Act of 1789) from the Supreme
Court to order the delivery of his
commission.
2. Decision of Marshall and the Court:
Section 13 of Judiciary Act of 1789 was
unconstitutional.
V. Judicial Review
3. Marshall ruled that the Court did not
have the authority to issue the writ,
but he paradoxically increased its
power by establishing judicial
review when the Court struck
down section 13.
Jefferson couldn't complain because
the midnight judges didn't receive
their appointments, but he fumed
because his enemy, Federalist John
Marshall, increased the power of the
Court.
Effects of judicial review:
citizens can challenge
constitutionality of laws in court by
initiating lawsuits  litigation has
become an important way of making
public policy.
Chief Justice John Marshall
Changing the Constitution formally:
adding Amendments.
A. Legacy of Articles: Unanimous
vote to amend was impractical --desire to make process easier, but
not too easy.
B. Reasons for recent popularity
of proposing Amendments
(balanced budget, D.C. statehood,
ERA):
1. Dissatisfaction by interest
groups with court decisions,
(flag burning, abortion rights, etc.)
2. Gridlock in Congress.
Changing the Constitution formally:
adding Amendments
C. Process of amending reflects federal
system.
Proposal:
1. 2/3 vote from both houses of Congress
(all 27 done this way). No presidential veto
possible.
2. Const. convention called by Congress
at request of 2/3 of states.
a) Never used before.
b) Fear of "runaway" convention that might get
out of hand and implement wholesale changes in
the Const.
Changing the Constitution Formally: adding
Amendments
Ratification
1. 3/4 of state legislatures.
1) All but one (21st) done this way.
2) Most state legislatures ratify w/simple
majority, but some require a supermajority."
2. Ratifying conventions in 3/4 of
states.
(Amendment 21 done this way.)
A more directly democratic way: people elect
delegates who state their positions on the
proposed amendment.
Time limits for ratification: generally 7
years (exception of ERA).
Changing the Constitution Informally
A. Const. a framework ---> details to be filled in later.
B. Due to difficulties of formally changing Constitution, informal ways developed:
1. Acts
of Congress
(laws & practices)
2. Judicial rulings (e.g., Plessy v. Ferguson,
Brown v. Board of Ed., Texas v. Johnson).
3. Presidential actions (police actions since WWII,
executive privilege, executive agreements, impoundment).
4. Customs and traditions (Cabinet, political parties,
Congressional committee system, senatorial courtesy, presidential
nominating conventions)
“Constitution belongs to the living, not the dead” (Jefferson). Jefferson believed
each generation might need new Const. This hasn’t occurred because of the
informal changes that have allowed the Constitution to adapt to changing times.