Flow Chart of the US Constitution Assignment. e:\history\two\const\const.assign Spring 2009 US Constitution 1. Assignment. This flow chart of the US Constitution is a simple concept. It is designed to help students align the structures in the US Constitution with the political ends the Founding Fathers intended to achieve. 2. Presentation. A group presentation will be held the last day of class during this unit. Focus on three main points. A Flow Chart that demonstrates the Separation of Powers and Checks and Balances, and one that outlines the debate between Strict Construction and the Necessary and Proper clause are two essential points. The United States Constitution is based on several different political theories. Your categories of political theory might include, but should not limited to the following categories: 1) Separation of Powers, 2) Checks and Balances, 3) Limited Government, 4) Tyranny of the Majority, 5) Minority Rights, and/or 6) Housekeeping. For each of the above categories provide the following information. a. Article Number. Where is it found in the Constitution? b. Political Theory. Which political theory does this section fall into: the Separation of Powers, Checks and Balances, Limited Government, Tyranny of the Majority, Minority Rights, and/or Housekeeping? c. Constitutional Language. What language in the Constitution provides the basis of your evidence? d. Purpose. In your own words, what is this section trying to accomplish? For example, how does it foster the separation of powers? e. Applications. Put this into your own words and speculate how these sections might operate. Where applicable provide the common name for that section. f. Evaluation: What do you think of this section? What are your comments? g. Flow Chart. Make a Flow Chart of the Constitution, which illustrates some of the principles mentioned above. Present your chart to the class. 1
II. Minority Rights. How do the following clauses protect the concept of minority rights? Take a position on this issue and explain your reasoning. Analysis: US Constitution: Article I. Section 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. [A writ of habeas corpus is a legal document, which tells the government either to charge the Defendant with a crime, or let him go]. No bill of attainder or ex post facto law shall be passed. [A Bill of Attainder has an irrebutable presumption of guilt. An example is that all persons named Benjamin Franklin are guilty of treason]. [An ex post facto law literally refers to a law that is passed after the fact. Thomas Jefferson smokes cannabis on day one. Congress passes a law outlawing smoking of marijuana on day two. On day three Thomas Jefferson is convicted of violating this drug law. Jefferson defense is that is an ex post facto law. On day one, Jefferson did a legal act. The legislature illegally passed a law, prohibiting previously legal conduct. Instead of applying that legislation to future violators, they reached back and snagged Jefferson, who had no opportunity to conform his conduct to the course of law]. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State be obliged to enter, clear, or pay duties in another. No money stall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of 2
all public money shall be published from time to time. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. III. Tyranny of the Majority. The delegates in Philadelphia made a distinction between democracy and republicanism new to American political vocabulary. Pure democracy was now taken to be a dangerous thing. As a Massachusetts delegate put it, "the evils we experience flow from the excess of democracy." The delegates still favored republican institutions but they created a government that gave direct voice to the people only in the House and that granted a check on that voice to the Senate, a body of men elected not by direct popular vote but by the state legislatures. Senators served for six years, with no limit on reelection; they were protected from the whims of democratic majorities and their long terms fostered experience and maturity in office. James L. Roark, Professor of History at Emory University, Michael P Johnson, Johns Hopkins University, Patricia Cline Cohen, University of California, Santa Barbara, Sarah Stage, Arizona State University, Alan Lawson, Boston College, and Susan M. Hartmann, Ohio State University, The American Promise: A Compact History Third Edition Volume I: To 1877 (Boston, Massachusetts: St. Martin's, 2007), 203. Similarly, the presidency evolved into a powerful office out of the reach of direct democracy. The delegates devised an electoral college whose only function was to elect the president and vice president. Each state's legislature would choose the electors, whose number was the sum of representatives and senators for the state, an interesting melding of the two principles of representation. The president thus would owe his office not to the Congress, the states, or the people, but to a temporary assemblage of distinguished citizens who could vote their own judgment on the candidates. James L. Roark, 203. The impulse behind it was aristocratic and middle-class. The common people had little or nothing to say about it (the US Constitution). William E. Woodward, (Consensus Historian), A New American History (New York: Literary Guild, 1937), 230. Analysis: 3
The fifty-five delegates all came from the higher social and financial classes. William E. Woodward, (Consensus Historian), A New American History (New York: Literary Guild, 1937), 231-2. The motivating spirit of the convention, not expressed but clearly understood--was to make the nation safe from democracy... "The people," said Roger Sherman, "should have as little to do as may be with government." William E. Woodward, (Consensus Historian), A New American History (New York: Literary Guild, 1937), 232-3. a) Other Prohibitions. US Constitution: Article I. Section 10. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder; ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. [A Bill of Attainder has an irrebutable presumption of guilt. An example is that all persons named Benjamin Franklin are guilty of treason]. [An ex post facto law literally refers to a law that is passed after the fact. Thomas Jefferson smokes cannabis on day one. Congress passes a law outlawing smoking of marijuana on day two. On day three Thomas Jefferson is convicted of violating this drug law. Jefferson defense is that is an ex post facto law. On day one, Jefferson did a legal act. The legislature illegally passed a law, prohibiting previously legal conduct. Instead of applying that legislation to future violators, they reached back and snagged Jefferson, who had no opportunity to conform his conduct to the course of law]. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not Analysis: 4
admit of delay. b) Amendments. US Constitution: Article V. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendments which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. Analysis: IV. Strict Construction vs. Necessary and Proper Clause. Take a stand on this issue. Discuss and evaluate both positions. 1. Elastic Clause vs. Limited Powers. Is the Necessary and Proper clause of the US Constitution inconsistent with the concept of limited government. Does it override other specific positions? Take a position on this issue and explain your reasoning. US Constitution: Article I. Section 8. The Congress shall have 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 in any department or officer thereof. Implied Powers. In McCulloch vs. Maryland, Marshall ruled... The government of the Union, he said, is limited in its powers, but it is supreme within the authority delegated to it. He then proceeded to define the "implied powers" of the federal government. Here is the definition, which has become a legal classic: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are 5
constitutional." William E. Woodward, (Consensus Historian), A New American History (New York: Literary Guild, 1937), 360. Bill of Rights: Article IX. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. Bill of Rights: Article X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 2. Strict Construction. Strict constructionists, such as Thomas Jefferson, say that the Constitution contains a very specific list of enumerated or listed powers, a very specific list of prohibited powers and only a very narrow necessary and proper clause; therefore, the implied power should be interpreted very narrowly. Consistent with the separation of powers, the retained rights, the reserved rights, and limited government the implied powers should be very narrowly construed. A) Broad Construction. By contrast, the Federalists, who supported a strong federal government, argued that our Founding Forefathers could not see every contingency and the Necessary and Proper Clause should be interpreted broadly constrained only by common sense. The Constitution is a living document which was intended to endure through the ages. B) Enumerated Powers. US Constitution, Article I, Section 8. The Congress shall have power: To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings Evaluation: 6
and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State, in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and A letter of marque and reprisal is a commission by a governmental official allowing a privateer or pirate to attack enemy ships and seize the property of a hostile nation on the high seas. James A. Ballentine, Ballentine's Law Dictionary (Rochester, New York: Bancroft Whitney, 1969), 727.] 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 in any department or officer thereof. C) Denied Powers. Section 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No bill of 7
attainder or ex post facto law shall be passed. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State be obliged to enter, clear, or pay duties in another. No money stall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. [A writ of habeus corpus is an ancient English common law idea which literally means give me the body. It is a writ or piece of paper issued by a court, which tells the jailer to either charge a defendant with an official crime or release him from his illegal confinement. James A. Ballentine, Ballentine's Law Dictionary, 543. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. James A. Ballentine, Ballentine's Law Dictionary, 135. For example, the Congress passes a law that Halliburton is guilty and must pay $10 billion. An ex post facto law is a law which in its operation, makes that criminal which was not so at the time of the act. James A. Ballentine, ibid., 441. For example, let us assume that green cars cause 45% more automobile accidents than any other color of car because they are easy on the eyes, and in 1992, the legislature bans green cars effective back to 1990. GM argues that making green cars was legal in 1991, and it is unfair to allow the government to making some a crime after the fact. We need notice and the opportunity to bring our conduct into compliance with the law, before we can be held accountable.] D) Prohibited Powers. Section 10. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder; ex post facto law, or law impairing the obligation of contracts, or grant 8
any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. E) Rationale. The legal concept is expressio unius exclusio alterius. The listing of some alternatives implies that the legislature has spoken their mind, which means that alternatives that could have been listed but were not, should not be read in. If the legislature outlaws red, orange, blue and pink cars, they have spoken their mind, and courts should not imply that green and brown cars should also be outlawed because they serve the same purpose. F) Application. The first major application of this issue came when Thomas Jefferson wanted to purchase the Louisiana territory from France, and his opponents argued that the Constitution's enumerated powers did not allow him to do this. The court has held that the interstate commerce clause must have included the power to regulate against the transport of sick chickens across state lines. Schecter Poultry Corp. v. United States (1933). The Court has ruled that Congress' land grants for Indian reservations must have included grants for water. Winters v. United States (1908). V. Runaway Government. Take a stand on this issue. Discuss and evaluate both positions. Some have argued that the federal government has run wild and now overpowers our state governments, the separation of powers, checks and balances, the people and our cherished rights. These people hope to rein in the federal government, particular the executive branch. 9