What Teachers Need to Know

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1 What Teachers Need to Know Background This section examines some of the basic values and principles of American democracy, in both theory and practice, as defined in the Declaration of Independence and the U.S. Constitution, both in historical context and in terms of present-day practice. In examining the significance of the U.S. Constitution, introduce students to the unique nature of the American experiment, the difficult task of establishing a democratic government, and the compromises the framers of the Constitution were willing to make. In order to appreciate the boldness and fragility of the American attempt to establish a republican government based on a constitution, students should know that republican governments were rare at this time. Discuss with students basic questions and issues about government, such as: Why do societies need government? Why does a society need laws? Who makes the laws in the United States? What might happen in the absence of government and laws? Where do people in government get the authority to make, apply, and enforce rules and laws? Students began their exploration of these questions in Kindergarten. Add to them the issue of power versus authority. A. Main Ideas Behind the Declaration of Independence Main Ideas The Declaration of Independence has four parts. The Preamble states that the colonists believe it necessary to explain why they are declaring their independence from Great Britain, so they have written this document. The next part explains the political ideas behind their action. Thomas Jefferson borrowed many of these ideas from French and British thinkers of the era, a time in history known as the Enlightenment. The third, and longest, part lists all the charges against the king, and the fourth part lists all the rights that the new nation is claiming for itself. Students should be familiar (at a minimum) with the beginning of the second part: 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. This second section continues with some words that may be less familiar to students but are no less important to the foundation of the nation: That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that is,

2 whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect [bring about] their safety and happiness. In general, the signers of the Declaration and the framers of the later Constitution were educated men who drew on ancient Greek and Roman ideas about government. They also read the works of British Whigs Trenchard and Gordon and European philosophers and political theorists of the Enlightenment period, such as Locke, Montesquieu, and Voltaire. The underlying idea of the Enlightenment was that reason was the basis of all knowledge, and all received ideas could and should be tested by reason. Instead of just accepting preexisting political institutions, Enlightenment political thinkers urged that reason be used to evaluate political ideas and institutions. It was the ideas of philosophers such as John Locke in England and Louis, Baron de Montesquieu in France to which Thomas Jefferson turned in writing the Declaration. Jefferson based the Declaration on the theory of natural rights, which argued that every human being has certain basic rights that belong to the person by virtue of his or her being human. From this assumption, Jefferson pursued a logical argument that people institute government to preserve these rights. When government no longer safeguards these rights, he asserted, people have a right to change the government. All Men Are Created Equal This is the basic assumption in the Declaration: every human is equal to every other by virtue of one s humanity. However, this does not mean that every person should necessarily have the same amount of education, money, or possessions, in material terms. It is also important to note that in the 18th century, not all people were considered equal. For example, women and African Americans did not receive equal treatment. Natural Rights What rights does a person have by virtue of being human? The first sentence of the Declaration identifies these rights as life, liberty, and the pursuit of happiness. The Declaration states that these are unalienable ( inalienable in some versions) that is, they cannot be taken away by any person or government. It is important to note that the signers agreed that these rights were only examples of the rights people have. Government s Responsibility The second sentence of the second section of the Declaration states, That to secure these rights, governments are instituted among men.... According to the Declaration, people establish governments in order to ensure that their rights are guaranteed and protected; that is the purpose of government. Right of the People... to Institute a New Government If a government does not protect the rights of its citizens, asserts the Declaration, then its citizens have the right to alter or abolish it and to establish a new government. Jefferson explains in the next few sentences that changing a government structure is not something to be done lightly. He then outlines a long

3 list of the king s abuses, including the following: quartering large bodies of armed troops among the colonists cutting off colonists trade with all parts of the world imposing taxes on colonies without their consent depriving colonists, in many cases, of the benefits of trial by jury 42 B. Making a New Government: From the Declaration to the Constitution Articles of Confederation During the Revolutionary War, the Second Continental Congress wrote and adopted the Articles of Confederation as the framework for the new nation as it waged war against Great Britain. When peace was won, the new United States continued to operate under this document. However, it had a number of shortcomings. For one, there was no executive department to coordinate the actions of the states or to act for the nation as a whole, for example, in dealing with foreign nations. The Congress of the Confederation held both legislative and executive powers, yet the Congress had no powers of taxation, making it dependent on the states for all revenue. The shortcomings of the Articles of Confederation were made clear by a series of events in the early years of the new republic, including Shays s Rebellion, an uprising which the federal government was too weak to handle without help from local government. Shays s Rebellion is considered one of the main events that led to the ratification of the Constitution. Framers: James Madison When it became clear that the central government under the Articles was not working, a convention was called in Philadelphia in 1787 to revise the Articles. Instead of merely revising, however, the delegates wrote a new constitution, the one under which we live today. The delegates to the Constitutional Convention voted to keep the proceedings secret, but James Madison, who represented his native Virginia, kept notes, which were not published until Because of his notes, we have a full record of the proposals and the debates over the wording of the Constitution. Madison was a pivotal figure in those proceedings. Having served on the committee in Virginia that wrote the state constitution, he had considered the proper role of government for some years. He had read political philosophers like Locke and Montesquieu, and was also well versed in Greek and Roman political institutions. His thinking is represented in several of the key ideas of the Constitution, such as the need for a strong central government, the basing of representation on population (the formula for the distribution of seats by state in the House of Representatives), and the federal system itself. Once the Constitution was passed, Madison joined Alexander Hamilton and John Jay in writing the Federalist Papers, which set out arguments explaining why the states should ratify the Constitution. After the Constitution was ratified and the new government took office, Madison, as a member of the first Congress, submitted a proposal for a Bill of Rights, which Congress debated, revised, and sent to the states for ratification. See Section C, The Constitution of the United States on pp , for a discussion of those rights.

4 Constitutional Convention The U.S. Constitution is the result of heated debate among men with differing viewpoints, representing different parts of the country, with sometimes competing interests. However, as Benjamin Franklin said in signing it,... I am not sure it [the Constitution] is not the best. Small/Large Part of that heated debate involved representation in the new government that the delegates were designing. According to a plan put forth by the Virginia delegation, the legislative branch of the government would have two branches: a House of Representatives and a Senate. Representation in both would be based on population. For example, Virginia, with a far larger population than New Hampshire, would have proportionally more members in each house. The smaller states were concerned that their interests would be ignored under such an arrangement. As a result, New Jersey put forth a second plan, which would give each state one vote in each house. In the end, the delegates rejected both the Virginia Plan and the New Jersey Plan in favor of one drafted by the Connecticut delegation. The Connecticut Compromise called for representation in the lower house, the House of Representatives, to be based on population, so the more populous states at that time, like Virginia and Massachusetts, would have more votes. In the upper house, or Senate, each state would have two representatives, called senators. In the Senate, the smaller states would have as many votes as the larger states. Representation in both the House and Senate continues to be based on this plan. Three-Fifths Compromise A second, equally volatile debate was related to slavery and representation: Should slavery be abolished? If it wasn t, should slaves be included in the population of each state, thereby increasing the number of representatives for those states that had slaves living within their borders? Antislavery sentiment was strong in northern states and in some parts of Virginia and Maryland. Some northern states had already abolished slavery, and many more would do so over the next 20 years. However, the economy of many southern states depended on slave labor, and these states were not willing to abolish slavery. Determining representation was a major part of the debate. Southern states wanted slaves counted, whereas northern states did not. If slaves were counted, southern states would be allotted more seats in the House of Representatives. Southern states threatened to leave the Constitutional Convention if their demands to maintain slavery and count slaves when determining representation were not met. Northern states finally agreed to a compromise that allowed southern states to count every five slaves as three free men. This is known as the threefifths compromise. Students and teachers sometimes confuse the three-fifths compromise, thinking that southerners wanted to count slaves as only three-fifths of a person. In fact, southerners wanted slaves counted as persons to increase their political representation. Northerners, eager to increase their own power and limit the power of southerners, wanted slaves not to be counted at all. There were also 10 provisions written by the convention regarding slavery, including a

5 provision that Congress would not attempt to end slave trade before These concessions were known as the Great Compromise, and it effectively left resolving the issue of slavery and abolition to another generation. C. The Constitution of the United States As a result of the work of the delegates to the Constitutional Convention, the United States has a constitutional government, that is, one in which the law limits what government can do. The Constitution is the highest law in the land. No actions of either the legislative or executive branches may violate the Constitution. The judicial branch determines the constitutionality of their actions laws, executive orders, regulations, and so on. (Note that this power of judicial review is not included in the Constitution. It was first established in the landmark Supreme Court case of Marbury v. Madison (1803), in which Chief Justice John Marshall ruled that the Court has the power to nullify laws it deems unconstitutional.) The United States has the oldest written constitution in the world. One of the reasons for its success is its adaptability. The delegates built an amendment process into the document. Yet only 27 amendments have been added since ratification, and the Constitution remains remarkably similar to what it was in There are five basic principles on which the Constitution rests: 1. popular sovereignty, the will of the people; 2. federalism, the division of power among national and state governments; 3. separation of powers among executive, legislative, and judicial branches; 4. checks and balances among the three branches of government; and 5. limited government, the delineation of the powers between federal and state government. Preamble to the Constitution The Constitution begins with a Preamble that explains the purpose of the document and establishes the government on the principle of the consent (or agreement) of the governed. It is We the people of the United States who are establishing the government and who agree to live under its laws. This principle is known as popular sovereignty. You should go over the Preamble of the Constitution several times with students, returning to it during several subsequent class sessions, explaining difficult words and phrases, and discussing the meaning of phrases like domestic tranquility and general welfare. You may even wish to encourage students to memorize the Preamble. Three Branches of Government After the Preamble, the next three articles of the Constitution describe the three branches of government. Article I describes the powers of the legislative branch, Article II the powers of the president and the executive branch, and Article III, the powers of the judiciary. The framers of the Constitution devised a federal form of government, in which power is divided between the national, or federal, government and the states. Article I, Section 8, Clauses 1 17 enumerate the powers of the federal government; these are known as enumerated, or listed, powers.

6 Limits on Federal Government Power All powers not listed in Clauses 1 17 are reserved to the states, which may pass some of them on to local governments serving counties, cities, townships, and special-purpose districts. The Tenth Amendment further states that all powers that do not rest with the federal government nor [are] prohibited by it to the states, are reserved to the states respectively, or to the people. Separation and Sharing of Powers A second fundamental principle of the federal government as outlined by the Constitution is the separation of powers among the three branches of government: legislative, executive, and judicial. Article I lists the powers of Congress, Article II lists the powers of the president, and Article III provides a sketch of the judicial branch. Legislation to create a federal court structure along with judicial decisions have both had a role in determining the size and role of the federal judiciary. The powers of each branch limit the powers of the other two, acting as a system of checks and balances. Legislative Branch The legislative branch, Congress, is divided into two houses: the House of Representatives and the Senate. The current House has 435 members. The total number of representatives is based on legislation, and the number per state is based on a proportion worked out from each state s population once every 10 years, after the decennial national census. Members of the House are elected for two-year terms. The Senate has 100 members, two from each state. Senators are elected for six-year terms. In general, Congress develops and passes laws governing federal income tax rates, overseeing securities (stocks and bonds), regulating trade with foreign nations, and managing the environment. The House has the sole power to initiate revenue bills; the Senate must approve the bills. The Senate has the sole authority to confirm or reject foreign treaties negotiated by the executive branch. They likewise have the power to confirm or reject presidential nominees as ambassadors to other countries and as judges for the federal judiciary, including the Supreme Court. Executive Branch The president heads the executive branch of government. Second to the president is the vice president. Both are elected by the Electoral College. In the Electoral College, each state has one vote for each member of its congressional (Senate and House) delegations, making for a national total of 535 votes today. Voters in each state vote for electors pledged to the candidate. The electors then meet after the election to cast their votes. This is how in the 2000 (Bush v. Gore) and 1876 (Hayes v. Tilden) elections, the candidate with the majority of the popular vote lost; in each case he failed to win a majority in the Electoral College. At the next level of the executive branch are the secretaries, or heads, of the 15 executive departments (although the head of the justice department s official title is attorney general, not secretary). These men and women make up the president s cabinet. They are appointed by the president and serve at the pleasure of the president. However, the Senate must approve their appointments, an example of checks and balances in operation.

7 There are some 4,000 top-level managers within the cabinet departments and in regulatory agencies, government corporations, and commissions. The president, with the approval of the Senate, appoints them as well. These are non civil service jobs, so the candidates do not take civil service examinations and they also serve at the pleasure of the president. An example of a regulatory agency is the Securities and Exchange Commission. Amtrak, the federally subsidized passenger railroad company, is an example of a federal corporation. One commission is the Civil Rights Commission. In all, some 2.7 million people work for the federal government, not including members of the military or the employees of Congress or the federal judiciary. These are career employees and are covered by provisions of the civil service law. The president oversees the executive branch, whose job it is to see that the laws, which Congress passes, are carried out. The cabinet departments and their agencies, as well as government corporations, commissions, and regulatory agencies, are charged with seeing that the laws are enforced. Judicial Branch The federal judiciary is headed by the U.S. Supreme Court. There are nine justices on the Court, and the head of the Court is called the chief justice. All Supreme Court justices and most lower federal court judges are appointed for life. (There are a few exceptions to the life-tenure policy.) The Supreme Court determines the constitutionality of laws. Federal laws or state laws may come before the Supreme Court on appeal. The Supreme Court does not usually try any original cases, that is, cases that have not been heard by a lower court and sent through the appeals system. The few exceptions have to do with cases against a state or several states and against officials of foreign countries. In choosing the cases that the Supreme Court hears, the justices take only those cases whose outcome could affect a law by overturning it as unconstitutional, by affirming one that had been questioned, or by fine-tuning it in some way. The federal judiciary, the next level below the Supreme Court, deals with about 1% of all the court cases heard in the United States annually. Federal courts hear only those cases that deal with breaking federal laws, such as laws against drug possession and sale, firearms violations, corporate tax fraud, and corporate polluters. Checks and Balances The Senate s authority to accept or reject presidential nominees and foreign treaties is an example of the checks and balances system that the framers wrote into the Constitution. The framers were concerned about giving the central government too much power, so they devised a system by which the three branches would limit one another s power. The checks and balances are: The president must provide an annual State of the Union report to Congress. must submit nominees for certain federal positions to the Senate for approval (for example, cabinet secretaries and federal court judges). must initiate a federal budget for congressional approval. may veto a bill passed by Congress. Congress The House can impeach a president for wrongdoing in office.

8 The Senate tries an impeached president. With enough votes, both houses may override a president s veto. Senate approves treaties and presidential appointments. Congress initiates all finance legislation. Judicial branch Reviews legislative and executive actions. Chief justice presides at impeachment trial. Veto If the president disagrees with a bill that Congress has passed, the president may veto, or reject, it. The president can do this in one of two ways. 1. If Congress will be in session for more than 10 days, the president returns the bill explaining why he is not signing it. 2. If Congress will adjourn within 10 days of the president s receipt of the bill, the president does nothing. This is known as a pocket veto. To override a president s veto, both the House and the Senate must reconsider the bill, and at least two-thirds of each chamber s members must vote for it. Bill of Rights The first 10 amendments to the Constitution are known as the Bill of Rights. In order to ensure ratification of the Constitution, the Federalists, those who supported the Constitution, agreed to write and submit for ratification a list of amendments that would guarantee certain basic rights; hence the name Bill of Rights. Amendment Right Meaning First Freedoms of religion, speech, press, assembly, and petition The government may not establish an official religion or keep anyone from practicing his/her faith. (This is in reaction to the British government s support of the Anglican Church, or Church of England, as its official church and its occasional persecution of dissenters.) The government may not punish people for expressing their opinions through speeches or printed matter (except in cases of libel and slander); cannot keep people from gathering for peaceful meetings or from asking for an end to injustices. Second Third Fourth Right to bear arms Limits on quartering (housing) troops Protection against unlawful search and seizure A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. No soldier shall in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be proscribed by law. Point out to students how the memory of the British quartering of soldiers in Boston before the Revolution resulted in this amendment. The government must get a warrant from a judge authorizing a search and seizure of a person and/or goods. The application for the warrant must show probable cause (reasons) why the action is necessary. This amendment was passed in response to colonial writs of assistance issued without cause that allowed British agents to search for smuggled goods before the Revolution.

9 Amendment Right Meaning Fifth Due process: rights of This amendment sets up a number of rights an accused in criminal that a person has when accused of a crime. proceeding Among them is the need for a presentation of evidence before a grand jury, which decides whether there is enough evidence for a trial. Sixth Seventh Eighth Ninth Tenth Rights to a speedy and fair trial by a jury Rights in a civil suit Protection against cruel and unusual punishment Nonenumerated rights: powers reserved to the people Powers reserved to the states or people In addition to the rights to a speedy and fair trial, this amendment covers the right of a defendant to be told the charges against him/her, have witnesses testify on his/her behalf, and have an attorney. In a civil lawsuit for damages, either party may request a jury trial and it must be granted. This amendment bans excessively high bail to free someone while the person awaits trial or excessively high fines if a fine is imposed as part of the punishment for a guilty verdict. A cruel and unusual punishment cannot be imposed. The people have rights that are not listed in the Constitution, but which belong to them as members of a democratic nation. These are the rights not listed in the Constitution as being given to the federal government. D. Levels and Functions of Government State Government After the colonies had declared their independence as the United States of America, Congress encouraged the new states to write constitutions. As each of the subsequent 37 states was admitted to the Union, each had to develop its own constitution. These state constitutions and the laws that the individual states have passed or will pass are subordinate to the U.S. Constitution, which is the highest law of the nation. Article VI of the Constitution, which the new states agreed to obey, articulates this: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. The organization of state government is similar to the organization of the federal government. Each state has executive, legislative, and judicial branches. A governor heads the executive department. Most states have a lieutenant governor and also a cabinet that oversees the departments responsible for carrying out the laws. The legislative branch makes the state s laws. All the states except Nebraska have upper and lower lawmaking bodies. Nebraska has just one legislative body. The state courts hear many more cases than federal courts. States have general trial courts that hear most civil and criminal cases, specialized trial courts such as

10 family law or state tax law courts, and a state supreme court, which is the court of last appeal in the state court system. Thirty-nine states have intermediary courts of appeals, which hear routine appeals on trials. Like the U.S. Supreme Court, the supreme courts in those 39 states hear only cases that might impact the law as it is written and has been interpreted. Thirty-six states have some form of elected judges, and the other 14 states appoint their state judges. Local Government The United States is composed of 50 states and almost 90,000 local government units. A local government unit may be a county, municipality (city), township, school district, or a special district, such as a flood control district or a fire protection district. In all, 17.7 million people worked for state and local governmental units in 2001, and that number has been rising since the 1960s, while the number of federal civilian employees has been declining since the early 1990s. Type Purpose Function Officials county, Administrative Keeps birth, death, County: commission largest local arm of state and marriage records executive, clerk, government government Maintains roads and sheriff elective and bridges offices Maintains countywide law enforcement and court systems Collects taxes Registers voters and supervises elections Provides public welfare on a countywide basis township Administrative Similar to county Township: board arm of state or purposes supervisor, possibly county government other department in most places where heads elective they exist offices municipality Operates most Maintains streets, Mayor and city (city) services for parks, and recreation council; or council and communities programs city manager. The Manages water and latter runs the day-tosewer utilities day operations of the Collects trash and garbage city. Provides fire and police protection Manages public hospitals and health programs Operates public transportation systems Manages public welfare systems Manages housing and urban development programs

11 Type Purpose Function Officials school Operates a Operates a community s Elected school board district locality s school schools, or schools in more and hired district; most than one community administrators school systems are if a regional or their own district; consolidated school an exception is district Hawaii, which operates the state s schools. special Provides a single Great variety of No typical district service over a wide types; fire, flood organizational area that may control, sewage structure; may be include several treatment, libraries elected or appointed cities or townships policy-making board or even counties How Government Services Are Paid For The services that governments provide, from trash collection to running summer playground programs to operating schools, cost a great deal of money billions and billions of dollars when added together across the nation. There are a variety of ways that public services are paid for. Among them are: at the federal level: personal income taxes; corporate income taxes; excise taxes (tax placed on the production, manufacture, transportation, sale, or use of a good or service; for example, taxes on gasoline, cigarettes, telephone usage); social insurance taxes and contributions (funds Social Security payments) at the state level: personal income tax; corporate income taxes; business tax; tolls on roads, bridges, tunnels; sales taxes; taxes on cigarettes, gasoline, clothes, and other goods at the local level: wage or income tax; business tax; property tax; sales tax on cigarettes, clothes, and other goods How People Can Participate in Government People may participate in government in a number of ways. The most basic way is to be an informed voter and vote in all local, state, and national elections. Paying taxes, serving on juries, and obeying the law are other ways that a person exercises the responsibilities of citizenship. Other ways to participate in government are to volunteer in the campaigns of candidates for public office or to become a candidate. There are also many different kinds of jobs in government service, from the traditional, such as law enforcement officer, to the unusual, such as urban archaeologist working for the National Park Service.

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