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.
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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
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
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
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