We are going to take a quick tour of the Cons3tu3on and highlight various parts that are both important in American history and in current events.

Transcription

1 We are going to take a quick tour of the Cons3tu3on and highlight various parts that are both important in American history and in current events. 1

2 The Cons3tu3on is the DNA of our government, the instruc3on manual, the user agreement between the government and the people. It was consciously and carefully constructed to avoid many of the picalls the Founders had seen from government, like how the Ar3cles created a federal government that was too weak and how their experience with the Bri3sh showed them the problems associated with a strong central government that was too tyrannical. 2

3 The concept of popular sovereignty can be traced back to the democra3c governments of ancient Greece. Limited government is a restatement of John Locke s consent of the governed. Separa3on of powers is an idea popularized by the French philosopher Montesquieu during the mid-1700 s. Finally, federalism refers to the process by which power is shared between the states and the na3onal government. 3

4 The Cons3tu3on contains a short Preamble that describes the scope and purpose of he federal government. Each Ar3cle gives the rules for sevng up a various branch of government or for handling rela3onships between the states or the rules for changing (amending) the Cons3tu3on. Finally, at the end, there are the 27 amendments or changes made to the Cons3tu3on over the last 230 years. 4

5 The Preamble is the most-quoted part of the Cons3tu3on and is referenced o[en in popular culture, especially in an iconic Schoolhouse Rock episode. It outlines the purpose of our government. I see the more perfect union as a nod to empiricism and the Enlightenment. We ll never create a perfect government, but our Cons3tu3on creates a system by which we can con3nually improve our na3on coming closer and closer to perfec3on. 5

6 The bicameral Congress gives us Representa3ves who are up for elec3on every two years they are basically always in elec3on mode and are very responsive to the changing mood of the people. The Senators serve for six years they are safe from the people for most of their term and only have to think about re-elec3on by year 5. This compromise between a more direct (House) and less direct (Senate) version of representa3ve democracy is typical of the Cons3tu3on. Note the enumerated powers on the right these are the du3es of Congress, the things the legisla3ve branch is in charge of. Can they go outside those boundaries? 6

7 The Necessary and Proper clause can be interpreted in two different ways. First, some people would say necessary and proper only applies to the enumerated powers (taxes, war, trade etc.) listed in Ar3cle I. This strict interpreta3on says the federal government can only do exactly what the Cons3tu3on says it is allowed to do and nothing more. A strict view is a conserva3ve view. A more liberal viewpoint is a loose interpreta3on we can do anything we think is necessary and proper as long as it isn t uncons3tu3onal. This loose view stretches the Necessary and Proper Clause to cover almost any government ac3on. Hence, we some3mes call the Necessary and Proper clause the elas3c clause. 7

8 One of the enumerated powers held by Congress is the ability to regulate commerce between the states. In 1789, this was the excep3on. In the 21 st Century, it is the norm. Almost every economic transac3on today is an interstate one. This expands the power of Congress. Beginning in the 1930 s and using this clause as their jus3fica3on, Congress passed laws regula3ng the workplace (over3me, working condi3ons, etc.). The Supreme Court upheld the view that the enumerated power that gives Congress control over interstate trade allows them to regulate almost any area of the American economy. 8

9 Another change since 1789 is the rela3ve size of the US military. A small home-based force in 1789 is now the world s migh3est military. As Commander-in-Chief, our President today exerts far more power through the use and posi3oning of our military than George Washington ever could. This is another example of the contradic3ons between what is wrihen in the Cons3tu3on and how it is interpreted and executed in the real world. As Commander-in-chief, the President can order our military into harm s way. And if fired upon, they can fire back. He can order drone strikes. He can send the Fleet anywhere in the world most of this can be done without the authoriza3on of Congress. So in the 20 th Century, we see situa3ons like Vietnam, in which a war is being fought, but without a war being declared by Congress. 9

10 We will discuss the Electoral College more completely when we discuss poli3cal par3es but it is fundamentally a brake put on direct democracy by the Framers of the Cons3tu3on. Each state gets a number of Electors equal to their representa3ves in Congress. For Wyoming, that is their two Senators plus their one Representa3ve, totaling three electoral votes. As it is impossible to get fewer than three, the Electoral College is biased (slightly) in favor of smaller states. The winner of the state s popular vote gets all their electoral votes. This system can result in situa3ons as extreme as 2016 where Clinton received 3 million more votes than Trump and s3ll lost the Electoral College. The Electoral College was designed exactly to do this to decrease the power of the people as expressed through direct democracy. 10

11 Judicial review is another example of the real world conflic3ng with the enumerated powers of the Cons3tu3on. A strict interpreter of the Cons3tu3on would not think the Supreme Court had the power to throw out any laws it deemed to be uncons3tu3onal. But in 1803, Chief Jus3ce John Marshall claimed that power in his ruling on Marbury v. Madison. In that the ruling helped sivng President Thomas Jefferson, he supported it and the precedent was set. Marshall used a loose interpreta3on of Ar3cle III Sec3on 2 to jus3fy judicial review but it should be noted that earlier Chief Jus3ces never claimed the power. 11

12 Ar3cle IV deals with the rela3ons between states. Sec3on 1 makes state records valid in other states, which is why your North Carolina drivers license is recognized in any of the other 49 states. As for Sec3on 2 it is another example of slavery being built into the Cons3tu3on. It is the basis for every fugi3ve slave law a Cons3tu3onal compulsion to return escaped slaves to their masters. 12

13 The Amendment process as delineated in Ar3cle V is another example of the Framers deliberately slowing the pace of democra3cally-driven change by requiring two super-majori3es to create a new amendment to the Cons3tu3on. A 2/3rds supermajority is required to propose the Amendment and 3/4ths is required to ra3fy it and make it law. Ar3cle VI establishes federal law as supreme over the states and forbids religious tests for public office. Sadly, many states required voters themselves to profess a belief in Chri3anity un3l the 1840 s (including North Carolina). 13

14 The Bill of Rights (the first Ten Amendments) create nega3ve rights they tell the government what it cannot do to you. By contrast, a posi3ve right is something the government must provide for all its ci3zens. Here we are told the government can t, for example, force you to follow a certain religion (#1) or punish you in a cruel or unusual manner (#8). These Amendments helped soothe the An3-Federalists who were afraid the federal government under the Cons3tu3on would tend towards tyranny. 14

15 These amendments were passed a[er the Civil War. The 14 th Amendment guarantees equal protec3on under the law and was used by the Supreme Court in the 20 th Century as jus3fica3on for removing separate but equal segrega3on and different requirements for vo3ng in the Jim Crow South. Today, the 14 th Amendment is used to jus3fy gay marriage. 15