Constitutional Underpinnings APGOVT.1a-e Unit Learning Targets APGOV.1: Examine the kind of government established by the Constitution by: a) investigating the historical events and philosophical beliefs that led the Framers to write the Articles of Confederation and describe the key changed made when creating the Constitution to address the issues of decentralization; b) explaining the structure and content of the United States Constitution and the Bill of Rights; c) analyzing separation of powers and checks and balance as a foundation of American government; d) describing the patterns and evolution of federalism as foundations of American government; e) examining both historic and contemporary theories of democracy. Theories of Democracy APGOVT.1: Examine the kind of government established by the Constitution by: e) examining both historic and contemporary theories of democracy. 1
Theories of Democracy Democracy: rule by the people demos=the people cracy(kratos)=strength/rule Direct Democracy Representative Democracy a government in which all or most citizens participate directly. (think Ancient Greece) a government in which leaders make decisions by winning a competitive struggle for the popular vote. Modern Example: Switzerland (sort of) Modern Examples: United States, France, India Theories of Democracy Traditional/Participatory Theory Everyone has the right to participate in government. This participation can occur either by direct or representative vote. Citizens have the power to decide on policy proposals and politicians assume the role of policy implementations. Theories of Democracy Elitist Theory The generalization that nearly all political power is held by a relatively small and wealthy group of people sharing similar values and interests and mostly coming from relatively similar background. It doesn t matter who is in charge of the government, the wealthy upper-class are always controlling things 1/3 of the nation s wealth is held by 1% of the population. Pluralist Theory Society is ruled by competing organized groups in which individuals are represented largely through their membership, and all groups have access to policy process. Groups with shared interests influence public policy NRA, NEA, AARP 2
Democracy s Good Name Definition of Democracy Costs (What is bad about it?) Benefits (What is good about it?) Facts/Data/Info to prove US is a democracy. Facts/Data/Info to prove US is NOT a democracy. Put a check in the box if you believe the country meets this precondition 1. United States 2. Afghanistan 3. China 4. Russia 5. Nigeria Basic human security Functioning state with power and rule of law Free and fair elections Respect for human rights Civil Liberties and Rights Basic equality Education and informed populous Overall Historical Beginnings APGOVT.1: Examine the kind of government established by the Constitution by: a) investigating the historical events and philosophical beliefs that led the Framers to write the Articles of Confederation and describe the key changes made when creating the Constitution to address the issue of decentralization. 3
Historical Beginnings: Push Towards Independence Great Britain became more involved in the 1760 s Pushed the Colonists closer toward unity First Continental Congress: (1774) Plan opposition of the Intolerable Acts and other British policies Second Continental Congress: (1775) Established the nation s first national government Adopted the Declaration of Independence (1776) Declaration of Independence We hold these truths to be selfevident, 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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business -John Locke, Second Treatise on Government Committee of Five drafted the D of I John Adams Benjamin Franklin Roger Sherman Robert Livingston Thomas Jefferson The Real Revolution Radical change in principles, opinions, and sentiments, and affections of the people John Adams Revolutionary Ideas: Royal Prerogative vs. Consent of the Governed Constitution Legislative Superiority 4
Need for a New Government Needed a new government to: To manage trade and solve disputes among states Unite states in diplomatic and trade relations w/ other nations Cooperative defense against British army and navy Feared creating too strong a national government Felt government should be close to the people so they can control it and make sure it does not violate their rights Feared in a national government some states would have more power than others State Constitutions States began drafting Constitutions to replace Royal Charters Popular Sovereignty Consent of the governed Limited Government Delegated powers had restrictions Civil Rights and Liberties 7 State Constitutions contained a Bill of Rights Separation of Powers Checks and Balances Articles of Confederation and Perpetual Union Drafted: November 15, 1777 Ratified: March 1, 1781 Needed all 13 States United the states-- Firm League of Friendship Congress of the Confederation Unicameral Key Elements: Article 2: superiority of separate states over Confederation Article 3: for their common defense, security of their liberties, and their mutual and general welfare Article 4: One vote per state Article 5: only central gov t could declare war and conduct foreign relations Article 8: U.S. expense paid by funds raises from state legislatures Article 11: Nine states approval of new State Article 13: Articles can only be altered by ratification of all states and approval of Congress 5
Articles of Confederation Weaknesses: One vote per State Congress lacked power to tax Congress lacked power to regulate foreign and interstate commerce No Executive No National Court System Unanimous consent needed to Amend 9 state majority needed to pass laws 1. How is caution reflected in the Articles of Confederation? 2. Who was protected more, the states or the Confederation? Push for Reform Economic Turmoil Post-war depression=farmers unable to pay debts Printed more $$$, which was worthless Mount Vernon Conference MD and VA disputing over trade GW calls joint meeting to regulate commerce 1786 Pinckney proposes revision to Articles: gives Congress the power to regulate trade and collect $$$ from states Shays Rebellion Famers rebel and attack court houses to prevent judges from foreclosing on their land State couldn t do anything about the rebellion Annapolis Convention Wanted to fix barriers that limited trade between states NH, NC, MA, RI delegates didn t make it in time CT, SC, GA, MD didn t send any delegates Constitutional Convention May 25-September 17, 1787 Legally delegates were only allowed to amend the Articles of Confederation Intent of some was to draft an entirely new government=james Madison & Alex Hamilton 12 states sent delegates RI feared that a strong nat l gov t would interfere in state affairs 6
Notable Delegates Attendance: George Washington VA, President of Convention Ben Franklin PA, 81 Years only Alexander Hamilton NY James Madison VA, recorded all debates and decisions Governeur Morris PA, assigned to put all resolutions and decisions into polished form Not in Attendance: John Adams Envoy to England and Holland Patrick Henry Opposed granting anymore power to national government Samuel Adams Not selected as a delegate from MA Thomas Jefferson Minister to France The Plans Virginia Plan Federal System Each citizen would be governed under the authority of a national and a state government Three branches Legislative Executive Chosen by the Legislature Judicial Chosen by the Legislature Judicial and Executive could veto acts of the legislature Bicameral Legislature Proportional representation (based on population or by money contribution) House of Representatives (Lower House) Elected by the people Senate (Upper House) Selected by lower house from nominees submitted by State Legislature Favored Large States New Jersey Plan Unicameral Legislature Equal representation for all states Legislature appoints executive No veto power Executive appoints judiciary Life-term The Great Compromise AKA: Connecticut Compromise Bicameral Legislature House of Representatives Directly elected by the people Proportional representation to population Census of citizens taken every 10 years All tax bills were to originate in H of R Senate Two seats from each state (equal representation) Selected by state legislature 17 th Amendment provided direct election (1912) 7
Population Issue: Slaves Issue: determining population for representation an taxes Southern states wanted to count slaves=more seats in the House State Slavery in the United States: 1790 Total Population Slave Population % Slave Population Connecticut 238,000 2,648 1.11 Delaware 59,000 8,887 15.06 Georgia 83,000 29,264 35.26 Maryland 320,000 103,036 32.20 Massachusetts 476,000 0 0 New Hampshire 142,000 157 0.11 New Jersey 184,000 11,423 6.21 New York 340,000 21,193 6.23 North Carolina 394,000 100,783 25.58 Pennsylvania 434,000 3,707 0.85 Rhode Island 69,000 958 1.39 South Carolina 249,000 107,094 43.01 Virginia 692,000 292,627 42.29 23 Three-Fifths Compromise Proposed: States would count 3/5 of the slave population Agreement: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." Ended with the 13 th Amendment: 1865 8
Commerce Compromise Presidential Compromise Fight for Ratification September 17, 1787 39 Delegates sign September 28, 1787 Congress of Confederation sends the U.S. Constitution to the States Article VII ratification nine States shall be sufficient Two Camps: Federalists Anti-Federalists 9
Federalists vs. Anti-Federalists Federalists Favored ratification of the Constitution A of C too weak, needed a stronger central government No need for Bill of Rights Listing certain rights could be dangerous what would stop the federal government from violating rights NOT listed? Federalist Papers Alexander Hamilton, John Jay, James Madison Anti-Federalists Opposed ratification of the Constitution Wanted a weak federal government that would not threaten states rights Wanted a Bill of Rights to declare and protect the rights of the people Patrick Henry, Thomas Paine, George Mason Federalist Papers 77 essays published in The Independent Journal and The New York Packet Purpose: Explain the Constitution to New York Push for ratification Authors: John Jay (5), Alexander Hamilton (51), James Madison (29) Federalist 10 Main Argument: Factions Group of people who share similar ideas Cause: Various and unequal distribution of property (not just land but wealth) Cause can t be removed, but we can control the effects Minority faction vote them out Majority large republic can fix Federalist 51 Main Argument: Separation of powers 3 Branches having little control over the others there are ways to check Usurpation (taking someone s power by force) If one branch s power is usurped the other branches can still check it s power. Ratification Supported by: merchants, urban workers, owned Western lands, did not own slaves, held government bonds Against: farmers, did not hold government bonds, slave owners Article 7 of Constitution: conventions in 9 states had to ratify in order for Constitution to go into effect DE, PA, NJ, GA, CT-Jan 1788 Most heated debates in MA, VA, NY MA ratified after assurances of a Bill of Rights followed quickly by MD, SC, and NH Concern over NY and VA holding out VA on 6/25 NY on 7/26 10
Bill of Rights Ratified by ¾ of the states on 12/15/1791 First 10 amendments to the Constitution Initially drafted by James Madison Influences: English Bill of Rights, Enlightenment Thinkers, GM s VA Declaration of Rights Limits the power of the federal government and protects the rights of citizens. Constitutional Reform Government is too weak: Gridlock and interference from legislators and interest groups Gridlock: the inability of the government to act because rival parties control different parts of the government. (what is currently going on in the US Government) Reducing the Separation of Powers b/w POTUS and Congress Congressmen allowed on Cabinet President can dissolve Congress and call special elections Presidential and Congressional team One six-year term Government is too strong Limit amount of taxes collected Require a balanced budget Line-Item Veto An executives ability to block a particular provision in a bill passed by the legislature. (think of it as just crossing out a line of a bill and passing the rest of it this is currently unconstitutional) Limit the authority of federal courts The Constitution APGOVT.1: Examine the kind of government established by the Constitution by: b) explaining the structure and content of the United States Constitution and the Bill of Rights. 11
Articles of the Constitution (know them, it will make your life easier) Preamble Constitutional Purpose Article I Legislative Branch Article II Executive Branch Article III Judicial Branch Article IV Relations among the States Article V Amending the Constitution Article VI National debts, supremacy of national law, oaths of office Article VII Ratifying the Constitution Preamble We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. The Elastic Clause/Necessary and Proper Clause "The Congress shall have the 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 IMPACT: main tool used by Congress and the President to increase their power which can result in a restriction of rights. when wrongly interpreted or applied, it can enable enormous growth of governmental power. 12
Commerce Clause "The Congress shall have the power To regulate Commerce with foreign Nations, and among the several States IMPACT: scope of the power depends on the interpretation of the power interpretation dependent on SCOTUS can give Congress the power to legislate in areas that otherwise would fall within the scope of the states police power.this is a federalism issue that we ll discuss later. Supremacy Clause "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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. State and local government cannot may not ignore or create their substitutes for national law and regulation. Conflicting state and local regulations are unenforceable. This is also a federalism issue Denied Powers The Federal Government Does Not Have the Power to: Suspend the writ of habeas corpus Protects against illegal imprisonment Pass ex post facto laws Retroactive laws Pass bills of attainder Declare an individual guilty of a capital offense without a trail 13
Amending the Constitution The Formal Amendment Process Founders anticipated need to change the Constitution - estab. in Article V Remember the A of C needed all 13 states to amend the A of C which was an issue. A carefully designed balance between the need for flexibility and the danger of frivolous additions Article V: Formal Amendment Process 1 st Method: Proposed by 2/3 vote of both houses and ratified by 3/4 of the State Legislatures 2 nd Method: Proposed by 2/3 vote of both houses and ratified by conventions in 3/4 of the States 3 rd Method: Proposed at a convention called by Congress and requested by 2/3 of the states. Ratified by 3/4 of the State legislatures 4 th Method: Proposed at a national convention and ratified by 3/4 of State conventions Article V: No Amendment may lesson a State s representation in Congress The Formal Amendment Process TWO WAYS TO PROPOSE AMENDMENTS By 2/3 vote of each house of Congress TWO WAYS TO RATIFY AMENDMENTS By at least 3/4 of the state legislatures By a national constitutional convention requested by 2/3 of state legislatures By specially called conventions in at least 3/4 of the states 14
The Informal Amendment Process The Constitution was written broadly so that change can occur without ratification of a formal amendment Legislative Actions Executive Actions Judicial Interpretations - the Power of Judicial Review Changing Customs Legislative Actions Congress has passed many laws that spell out and add to the Constitution s provisions Example: Congress has used the "necessary and proper" clause to pass laws and exercise powers not specifically granted to it in the Constitution Example: although Congress is granted the power to lay and collect taxes in Art. I, Sect. 8 of the Constitution, the clause does not specify what may be taxed nor how much tax may be collected, etc. Bottom line: Through legislative actions, Congress has interpreted the Constitution s meaning Executive Action The manner in which the President carries out his duties has shaped our interpretation of the Constitution. Example: Art. I, Sect. 8 states that only Congress can declare war - but Art. I, Sect. 2 states that the President is the Commander in Chief of the army. Presidents have used this authority to conduct war without a formal Congressional declaration - Korea, Vietnam, the Gulf War, Afghanistan, Iraq 15
Judicial Interpretations The courts, even more than the other two branches, have been the most influential in interpreting the Constitution when disputes arise. Marbury v. Madison, in 1803,the Supreme Court claimed the power of judicial review. Judicial review - allows courts to decide whether executive or legislative actions of state and national governments are in accord with the Constitution. Changing Customs Over the years, unwritten customs have been accepted as constitutional Examples: George Washington created a cabinet with positions such as Secretary of State, Defense, and Treasury - - loosely based on Art. II, Sect. 2 that states that the President may consult the principal officer in each of the executive departments Washington also created the two-term limit custom in his Farewell Address - - custom wasn t broken for 150 years until FDR elected 4 times in the 1930s and 40s - - Amendment 22, 1951 enforces Washington s custom 16
Checks and Balances APGOVT.1: Examine the kind of government established by the Constitution by: c) analyzing separation of powers and checks and balances as a foundation of American government. Separation of Powers Framers were concerned about one faction of the government becoming too powerful Borrowed this idea of separation of powers from Charles de Montesquieu (Enlightenment thinker) Governmental powers separated into three different but equally important branches Legislative makes the laws Executive enforces the laws Judicial interprets the laws Separation of powers also prevents a person from serving in more than one branch of the government at the same time. Checks and Balances Credit Montesquieu with the concept Madison sought to avoid concentration of power within one branch ambition much be made to counteract ambition. The phrase "checks and balances" is not specifically used in the Constitution not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, so save the people from autocracy. ~Justice L. Brandeis 17
Federalism APGOVT.1: Examine the kind of government established by the Constitution by: d) describing the patterns and evolution of federalism as foundations of American government. 18
Federalism Division of power between the central government and state governments Implied by the Constitution and spelled out by the Bill of Rights 10 th Amendment 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. Examples: U.S., Canada, India, Germany, Switzerland, and Austria Purpose and Effects Purpose: Protection of personal liberties Framers feared concentrated sovereignty Separate levels of sovereignty Sovereignty: legal and supreme authority Effects: Sparks debate Increases political activity Facilitates political mobilization Lowers cost of organized political activity at the local level Views of Federalism Strengths/Advantages maintains governmental strength, political flexibility and individual liberty 1. Checks the growth of tyranny 2. Allows unity w/o uniformity 3. Encourages experimentation 4. Keeps government closer to the people Weaknesses/Disadvantages allows states to prevent action, progress, and national plans and protects local and self-interests. 1. Inefficiency 2. Lack of accountability 3. Lack of uniformity can lead to conflict 4. Lack of consistency Federalist 10 Small political units are more likely to be dominated by a single political faction. 19
Delegated Powers Powers granted to the National Government by the Constitution Expressed Enumerated Article I, Section 8 Article II, Section 2 Article III 16 th Amendment Supremacy Clause: U.S. Constitution and laws/treaties of the United States are the Supreme Law of the Land Other Federal Powers Implied Powers Article I, Section 8 Elastic Clause, Necessary and Proper Make laws which shall be necessary and proper for carrying into execution the foregoing powers Examples: Inherent Powers Belong to the government because it is the government Examples: State and Shared Powers Reserved Powers 10 th Amendment Examples: Concurrent Powers Powers held by both the national and state governments Examples: 20
Denied Powers National Violate the Bill of Rights Impose export taxes on the states Use money from Treasury without the passage and approval of an appropriations bill Change state boundaries State Enter into treaties Print or coin money Tax imports and exports Suspend a person s rights without due process Federal-State Cooperation Federal Grant-in-Aid Federal funds given to a state or local government to fund a public project Block Grants: federal funds given for a broad purpose Examples: Categorical Grants: federal funds given for a specific purpose Examples: Revenue Sharing: distribution of federal revenue to states and localities Ended in 1986 Federal-State Cooperation Intergovernmental Lobby States and localities lobbying the federal government for money and services Purpose: obtain more money with fewer strings Federal Aid Control Conditions of aid Strings attached to the grant that tells a state to do something in order to receive the funds Most are important restrictions on state actions If you don t want the strings than don t take the money Some strings are specific to programs (most are not) Mandates Nat l government tells the state government what it must do» Most concern civil rights and environmental protection Supreme Court ruled that the 10 th Amendment provides no protection against mandates. 21
Relationship between the States Interstate Compacts Formal agreement between two states; or a state and a foreign state Requires Congressional Consent Example: Full Faith and Credit Clause State must respect laws and contracts of each state Civil not Criminal matters Limits on certain contracts (ex: marriage and divorce) Extradition Legal process of returning a fugitive to the State where the crime was committed Privileges and Immunities Clause No state may draw unreasonable distinctions between residents and citizens of other States. SCOTUS Rules on Federalism McCulloch v. Maryland (1819) Extends Congressional power and confirms national supremacy. Chief Justice: John Marshall Does Congress have the power to create a bank? Necessary and Proper Clause» Based on power to tax, commerce clause Can a state tax a federal bank? Federal government was not formed by the state but by the people thus supreme» power to tax is the power to destroy Federal government powers had to be immune from state challenge in order to be supreme Federalism Debate Nullification Theory that states could ignore federal laws they believed were unconstitutional Kentucky & Virginia Resolutions (Madison and Jefferson) Opposed Alien and Sedition Acts 1798 John C. Calhoun Opposition to a tariff and restriction of slavery Theory was settled by the Civil War Union is indissoluble State Sovereignty State powers possessed independently of the federal government U.S. v Lopez (1995) Congress exceeded its commerce clause power by prohibiting guns in schools Printz v U.S. (1997)» Overturned law requiring local police to conduct background checks on all gun purchasers distinction between what is truly national and what is truly local William Rehnquist 22
Types of Federalism Dual Federalism: Layer Cake Federalism (1790 s 1930) Clearly enumerated powers between the national and state governments Sovereignty is split into separate spheres. Cooperative Federalism: Marble Cake Federalism (1930 1960) National and State Governments share functions and collaborate on major national priorities. Creative Federalism: Picket Fence Federalism (1960 1980) Overloaded cooperation and crosscutting of regulations. New Federalism: Devolutionary Federalism (1981 Present) Devolution of power from national to state governments Increased difficulty of states to fulfill their new mandates. Devolution Devolution: Movement to shift responsibility for domestic programs to state governments. Welfare, Health Care, Job Training Second-Order Devolution: Flow of power/responsibility from states to local governments. Third-Order Devolution: Increased role of nonprofit and private organizations in policy implementation. Reasons: Ideological mistrust of the federal government. Increase in block grants instead of categorical grants. Reduction in overall spending. Americans favor the theory of devolution National Government State Governments Local Governments Nonprofits & Private Organizations 23