Taxes, Duties, Imposts and Excises (taxes on
commerce and imports) – same throughout the US
Coin money and regulate its value, prosecute
counterfeiting, establish bankruptcy law
Regulation of international and interstate commerce
Pay debts and borrow money
This is what gives us a national economic system
instead of separate state economies





Provide for the common defense and the
general welfare
National army and navy with President as
Commander-in-Chief
Call forth militia for national defense as
necessary
Treaties, negotiations with other countries
This is what gives us a national foreign and
military policy instead of separate state policies


Well-being of society as a whole
Congress has the power “To make all laws
which shall be necessary and proper for
carrying into execution the foregoing powers”


The national government essentially gets to decide
the extent of its own powers
Checked and balanced among legislative, executive
and judicial branches, and between national and
state governments
Separation of Powers: Each branch of
government has its own distinct
powers, and the branches are generally
required to cooperate to accomplish
anything. Each branch is chosen in a
different way. (Welch, p. 43).
Checks and Balances: Each branch has
some control over the other two. This
prevents any branch from abusing its
power. (Diagram on Welch, p. 44)

Article I: Legislative Branch



Article II: Executive Branch



House of Representatives
Senate
President, Vice President, Electoral College
Executive Departments
Article III: Judicial Branch


Supreme Court
“inferior Courts”
Legislative > Executive
Executive > Legislative
Executive > Judicial
Legislative > Judicial
Judicial > Executive and Legislative

Legislative → Executive








Congress passes laws.
Congressional oversight: Supervision of executive branch
activities.
Congress must approve spending (appropriations) and
can refuse to fund government activities.
Congress can override the President’s veto (2/3 in each
House).
Senate confirms senior presidential appointees.
The Senate must ratify treaties (2/3 vote) and confirm
nominations (majority vote) – “advice and consent.”
Impeachment (House) and conviction (Senate) can
remove an official from office.
Congress has the power to declare war although the
President is Commander-in-Chief.

Executive → Legislative
President can propose legislation.
 President can veto legislation passed by Congress.

 A 2/3 vote in each House is necessary to override the veto.
So the President can’t absolutely stop Congress from doing
something, but he can make it considerably more difficult.
President can refuse to spend money Congress has
appropriated.
 President can call Congress into special session.
 Vice President is President of the Senate, but has very
little actual power in this capacity; votes only to break
ties.


Executive/Legislative → Judicial



President appoints judges and Senate confirms them
(so they control who gets on the courts in the first
place).
House may impeach and Senate may convict and
remove from office.
Judicial → Executive/Legislative


Judicial review: Power to declare laws or acts of the
other branches unconstitutional.
Not specified in the Constitution but asserted by the
Court in Marbury v. Madison (1803).


Each state must recognize other states’ legally
binding acts and contracts.
Prior to the Supreme Court’s decision striking
down bans on same-sex marriage throughout the
country in June 2015, many states, including SC,
had laws barring recognition of same-sex
marriages legally performed in other states. This
was probably a violation of the Full Faith and
Credit Clause, although that was never tested in
court. The legalization of same-sex marriage was
based on the Equal Protection Clause of the
Fourteenth Amendment.


Proposal + Ratification:
Proposal
An amendment is passed by 2/3 vote of each House of
Congress
OR
 A constitutional convention may be called by the
legislatures of 2/3 of the states (has not happened since
1787)


Ratification (method chosen by Congress)
After being proposed, an amendment must be ratified by
the legislatures of ¾ of the states
OR
 By ratifying conventions in ¾ of the states (21st
Amendment)

PROPOSAL


Congress
Constitutional
Convention
RATIFICATION


State Legislatures
State ratifying
conventions




Amendments I-X.
Added to the Constitution in 1791 in order to gain
support from the Anti-Federalists, who believed
that the new Constitution gave the national
government too much power.
North Carolina and Rhode Island refused to ratify
the Constitution without the promise that a Bill of
Rights would be included.
Seventeen additional amendments have been
ratified since 1795. The 18th Amendment
(prohibition of alcohol) was repealed by the 21st
Amendment.


A series of essays arguing in favor of the
ratification of the Constitution, written by
Alexander Hamilton, John Jay and James
Madison. Published as letters to the editor in
newspapers to persuade the states to ratify,
particularly New York.
Madison authored Federalist #10 and #51.


“[A] well-constructed Union” will “break and
control the violence of faction.”
Faction: A group acting in its own “common
impulse of passion, or of interest, adverse to
the rights of other citizens, or the permanent
and aggregate interests of the community.”



Political parties
Economic classes
“Special interest groups”


“Curing the Mischiefs of Faction”:
Remove the cause or control the effects.

Remove the cause: Destroy liberty
 “Worse than the disease”

Remove the cause: Give everyone the same opinions,
passions and interests
 “As impracticable as the first would be unwise.”


Each person will form his own opinions and exercise
his own talents. This leads to different degrees and
kinds of property.
Unequal distribution of property is the primary
cause of faction (different economic classes).




Controlling the effects of faction
The republican principle: A faction may be
outvoted if they’re not the majority.
If they are a majority, either they must be
prevented from developing the same interests,
or prevented from being able to use this
interest to “carry into effect schemes of
oppression.”
Democracy is not the answer. It’s easy for
factions to form and difficult to check/control
them.




Republican form of government is the answer:
The people elect their representatives.
Madison believes that the elected
representatives may discern the public interest
better than the citizens themselves.
A republic can govern a larger and more
diverse territory than a direct democracy
where the citizens participate in decisionmaking themselves.
It is more difficult for factions to form in a
larger republic.


Each representative should serve a small
enough number of people to be familiar with
their needs, but a large enough number to
promote diversity of interests and prevent
factions from forming.
Division of power between the national
government and the states means that even if a
faction takes power in one state, it won’t
necessarily spread to the national government.



Separation of powers and checks and balances:
Answer to those who argued that the new
Constitution would give the national government
too much power
“Each department should have a will of its own”
and should not choose each other (exception for
the judiciary).
Branches of government are separately chosen:
House of Representatives: Popularly elected
 Senate: Elected by state legislatures
 President and Vice President: Chosen by Electoral College
 Judiciary: Appointed by President, confirmed by Senate.





Different branches should not control each
other’s salaries.
The President’s salary cannot be changed
during his term of office (it can only go into
effect at the beginning of the next term).
A federal judge’s salary cannot be reduced
during his term of office.
Why is this important?



“Resist encroachments of the others”
(branches)
“Ambition must be made to counteract
ambition.” An ambitious (power-seeking)
Congress will check the power of an ambitious
President, and vice versa.
“But what is government but the greatest of all
reflections on human nature?”



“If men were angels, no government would be
necessary.” (Why not?)
“If angels were to govern men, neither external
nor internal controls on government would be
necessary.” (Why not?)
“In framing a government which is to be
administered by men over men…enable the
government to control the governed, and…
oblige it to control itself.” (Enough power to do
its job but not enough to abuse its power.)



“In republican government, the legislative
authority necessarily predominates.”
“Divide the legislature into different branches”
(House and Senate) – this also settles the
dispute between large and small states as to
how seats in Congress should be apportioned
(population vs. equality of states).
Presidential veto is not absolute; an absolute
veto might be either abused or not used.





Power is divided not only among the branches of
the national government, but also between the
national government and the states.
They will check and balance each other.
Back to factions: In a monarchy, the sovereign has
an “independent will” which can prevent factions
from violating the rights of others; the republican
system of government plays this role under the
Constitution.
A republic can serve a larger and more diverse
territory, less danger that factions will form.
“Republican cause” and “federal principle.”



Addressed by the Declaration of Independence
(“All men are created equal”) and by the 14th
Amendment (citizenship and equal protection
of the laws). Not addressed by the ten original
amendments to the Constitution (the B of R is
only the first ten).
UDHR Article I: “All human beings are born
free and equal in dignity and rights.”
UDHR Article II: Condemns discrimination by
race, color, sex, language, religion, politics,
national origin, property, birth
Explicitly permitted by the original US
Constitution, prohibited by the 13th
Amendment.
UDHR: Prohibited by Article 4.


USC 8th Amendment prohibits cruel and
unusual punishment.
UDHR Article 5 prohibits torture, cruel,
inhuman or degrading treatment or
punishment.


Not part of the original Constitution,
guaranteed by the 14th Amendment.
UDHR Article 7: “All are equal before the law
and are entitled without any discrimination to
equal protection of the law…”

Articles IV-VIII of the Constitution guarantee
the steps in due process of law: protection
against unreasonable search and seizure,
search only with a warrant and probable cause,
protections against self-incrimination and
double jeopardy, right to a speedy and public
trial by a jury of one’s peers, right to counsel,
no excessive bail or cruel and unusual
punishment.

UDHR Articles 8-10: Protection against
arbitrary arrest, fair and public hearing by
independent and impartial tribunal,
presumption of innocence, guarantees
necessary for defense.


USC First Amendment guarantees free exercise
of religion.
UDHR Article 18 guarantees freedom of
thought, conscience and religion, right to teach,
practice, worship and observance of one’s
religion.


Not specified by the Constitution but asserted
by the US Supreme Court in a series of
decisions beginning in the 1960’s.
UDHR Article 12 protects against arbitrary
interference with one’s privacy.


USC First Amendment guarantees the right to
freedom of speech and freedom of the press.
UDHR Article 19 asserts right to freedom of
opinion and expression, access to information.


USC First Amendment and UDHR Article 20
both protect freedom of assembly.
PROTECTION OF COPYRIGHT: Protection of
intellectual property (your creation) is a power
given to Congress in Article I; protected by
Article 27 of UDHR.


The right to vote is not guaranteed by the
original Constitution or the Bill of Rights. It is
implied by later Amendments barring
discrimination in voting on the basis of race,
sex, age (18 or older) and abolishing the poll
tax.
UDHR Article 21 protects right to participate in
government, universal and equal suffrage,
right to public service.






Freedom of movement and
emigration/immigration
Freedom to seek asylum from persecution
Right to marriage and founding a family
Equal rights of men and women in marriage
Protection of the family as a unit of society
Ownership of property without arbitrary
deprivation





Social security and economic, social and
cultural rights
Right to work, free choice of employment, just
and favorable conditions of work, protection
against unemployment, equal pay for equal
work.
Just and favorable remuneration (living wage)
Right to form and join trade unions
Rest and leisure, limitation of working hours,
periodic paid holidays

Standard of living adequate for health and
well-being of himself and his family
Food, clothing, housing, medical care and necessary
social services
 Right to security in event of unemployment,
sickness, disability, widowhood, old age or other
lack of livelihood…
 Motherhood and childhood entitled to special care
and assistance, children have equal rights whether or
not born in wedlock.


Education





Free and compulsory elementary education
Technical and professional education available
Higher education equally accessible to all on basis of
merit
Education directed to full development of human
personality, respect for human rights and freedoms,
understanding, tolerance and friendship among all
nations, racial and religious groups, maintenance of
peace.
Parents have right to choose type of education.



Right to participate in cultural life of
community
Right to social and international order where
these rights and freedoms can be realized
Statement of duties and obligations to the
community



9th Amendment: The list of rights enumerated
by the Constitution is not exhaustive, that is,
people can be assumed to have rights not listed
in the B of R.
10th Amendment: General statement that
powers not granted to the national government
are reserved to states and people.
2nd Amendment: There’s nothing about guns in
the UDHR. The UDHR does not assume a right
to keep and bear arms.





The Constitution prohibits the government from
interfering with certain rights (religion, press, keep
and bear arms). It assumes that these rights exist.
The UDHR asserts that people have certain rights.
Negative rights: The government and others are
restrained from interfering with your rights (most
of the Bill of Rights).
Positive rights: You have the right to something
(health care, education, housing)
What difference does this make in terms of the role
of government in protecting or providing rights?