Principles of the Constitution
Separation of Powers
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To Madison, tyranny was gov’t that controlled all three
branches (argument for division of power)
This diffuses power instead of concentrating it
Danger of one branch combining forces with another
(argument for checks and balances)
Need for strong executive
Checks and Balances
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Fear of tyranny; distrust of government; meant to build
inefficiency to prevent gov’t abuse of power
18th century view of gov’t restraint combined with
modern view of gov’t use for common good
Each branch has check on other two
Ex.: veto, appointment, veto override, treaty making,
judicial review, commander-in-chief, law making
Political Independence (no branch is dependent on other
two)
Staggering Terms (2yr, 6 yr., life appointment)
Modifications of Checks and
Balances
Political Parties:
Theory: parties should bring branches together
Reality: Parties are weakened by wide range of interests
Divided Gov’t: President of one party: Congress of
the other
Changes in Voting Methods: Congressmen chosen by
people; President chosen by electors who vote with
people.
Growth of Federal Bureaucracy: Development of numerous
agencies with legislative, executive, judicial functions
(Ex. IRS, Justice Dept. , EPA, etc. )
Modifications (Cont’d)
Changes in technology: Two Views
1)
President, Congress, Interest Groups, and Media take advantage
of new technology (strengthens checks/balances)
2)
Presidents takes advantage through “staged events” (Ex.:Bush’s
Mission Accomplished, Obama’s Acceptance Speech in Grant
Park)); (weakens checks/balances)
3)
Emergence of U.S. as Superpower:
U.S. is leader of free world with interests around the world that
require us to respond to many crisis (Responsibilities concentrate
power in executive branch)
“IMPERIAL PRESIDENCY”
Limited Government
Dillema: Wanting more effective gov’t, but limited gov’t to
avoid tyranny
Remedy:
1)
Constitutional Gov’t- Only powers listed in Constitution
2)
Bill of Rights: Safeguard against strong, distant federal
government (10th Amendment)
3)
Free Elections (Potential of majority faction; Madison
cautioned against this)
Judicial review
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Power of Courts to strike down law
Not explicitly provided in Constitution; but
Constitution open to interpretation
Marbury v. Madison (1803)
Effect: Litigation has become a way of
making public policy (Brown v. Board of
Ed. Striking down separate, but equal or
Gideon v. Wainwright; right to counsel)
Changing the Constitution
(Formal; Adding Amendments)
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Proposal
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2/3 vote from both Houses. No Presidential
veto possible
Constitutional Convention Called by
Congress (At request of 2/3 of states)
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Never Used
Formal Changes (Cont’d)
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Ratification (2 Methods)
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¾ of State Legislatures
-All, but one done this way (21st Amendment)
-Most state legislatures ratify with simple
majority
Ratifying Conventions in ¾ of states
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- Amendment 21 done this way
Changing the Constitution
(informal)
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Principle: Constitution is a framework
Informal ways counteract difficulty in changing Const.
Acts of Congress (Voting Rights Act, 1965)
Judicial Rulings (Brown v. Board, Gideon v. Wainwright)
Presidential Action (Executive Order, e.g. Japanese
Internment)
Customs/Traditions (Cabinet, Parties, Committees)
“Constitution belongs to the living, not the
dead” - Jefferson
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Jefferson believed each generation might
need a new Constitution
Has not occurred due to the use of
informal changes which have allowed
Constitution to adapt to changing times