The Origins of political thought and the Constitution

The Origins of political thought and the Constitution

Social Contract Theory The implied agreement between citizens and the gov t saying that citizens will obey the gov t and give up certain freedoms in return for gov t protection

Philosophers who developed social contract theory Hobbes-believed in the divine right of kings, that the monarchs authority comes from God and the king s rule is absolute. In Leviathan, he wrote life would be nasty, brutish and short without such an authority Locke- supported removal of King James II in 1688. In his major work, Two Treatise of Government, argued when gov t did not protect the natural rights of life, liberty, and property citizens should break the social contract and overthrow the government.

Philosophers Montesquieu- wrote the Spirit of Laws in 1748 where he advocated a system of Checks and Balances between 3 branches of gov t. Rousseau- wrote The Social Contract in 1762, where he argued the Rich were to blame for social problems. His famous statement, Man is born free, and everywhere he is in chains.

Documents influencing the Constitution Hammurabi s code of Laws- from the middle east, one of the oldest examples of codified (written) laws, predating the old testament. Magna Carta- (Great Charter) King John was forced to sign it in 1215. It was intended to establish trial by jury, prevent King John from raising taxes without the consent of barons (noblemen), and establish rights of men.

Documents influencing the Constitution Petition of Right- In 1628, the English Parliament forced King Charles I to sign the petition. It limited the king s power much like the Magna Carta, but now the king needed the consent of Parliament to raise taxes. Charles ignored it and this eventually lead to Civil War. Common Sense- written by Thomas Paine, argued why the colonies should govern themselves.

English Bill of Rights In 1688, after James II was chased out of England and William and Mary were invited to rule jointly, they were forced to sign the Bill of Rights. It added to the Magna Carta and Petition of Right by requiring the king to have Parliament s consent to suspend laws, maintain an army, or interfere with Parliament s elections or debates.

Articles of Confederation Formed the 1 st U.S. gov t from 1777-1789 All federal authority resided in the Legislature, no real executive or judicial authority at the federal level. Features: One house legislature where each state had equal representation (1 member)

Articles of Confederation: Weaknesses Federal gov t had no power to tax Could not regulate trade between states or other countries No power to enforce laws that were passed New laws required 9/13 states to pass, which was very hard to obtain Amending the articles required approval of all states

Achievements under the articles Western lands were ceded to federal government to organize into new states by the North West Ordinance A treaty in 1783 with Great Britain recognized American independence.

The Constitutional Convention In 1787, delegates met to revise the Articles, but they were clearly too many problems with them.

Key Figures at Convention George Washington- presided over the Convention James Madison- Father of the Constitution for being its primary author Benjamin Franklin- active participant in debates Gouverneur Morris- wrote final draft of the Constitution

Competing plans for the Constitution Va. Plan Introduced by E. Randolph Called for a strong central gov t. Called for a strong executive and judicial branch Would create a Lower House whose representation was based on population and an upper house chosen by the lower This meant smaller states had much less power than larger states. N.J. Plan Introduced by W. Patterson Called for equal representation of the states in Congress (one house) Would create weak executive and judiciary Gave Congress authority to regulate trade and impose taxes

Compromise (Conn. Plan) Introduced by Roger Sherman Called for a House of Representatives based on population and allowed State legislatures to elect 2 members to the Senate All taxing and spending laws must begin in the House of Reps.

3/5 Compromise Northern states argued slaves should not be counted as part of states population b/c they were not truly citizens. The South would loose representation if they were not counted As a compromise, those in servitude would count 3/5 toward population Also, Congress could not ban international slave trade until 1808, nor could it tax exports

Compromise b/n Federalists and Anti- Federalists Before the Constitution would be ratified, it was agreed that a Bill of Rights would be added soon to protect the Civil Liberties of individuals.

6 principles of Government in the Constitution (except judicial review) Popular Sovereignty-People have absolute power over the government Limited Government-Government is not all powerful, they must answer to the people Separation of Powers-Power is separated into three separate and equal branches (leg, exec, judicial) Checks and Balances-each branch has restraints on all other branches to insure that no one branch becomes too powerful Judicial Review-Judicial Branch can declare acts of government constitutional or unconstitutional Federalism-division of power (national and state)

The Constitution Delegated Powers- refers to all powers of the national government Expressed/Enumerated powers- refers to all the specifically declared, (numbered) powers granted to the national gov t in the Constitution Implied Powers- derived by the necessary and proper clause (Article I, section 8, clause 18) Denied Powers-describes powers that are denied to any federal branch or state gov t by the Constitution. Concurrent Powers- powers granted to both the Federal Gov t and the states. Reserved Powers- generally used to describe powers reserved for the states by the 10 th Amendment

The Constitution s Preamble States reasons for the Constitution: 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.

Article I The most detailed part of the Constitution outlining the expressed powers and structure of Congress. (suggesting the Constitution s intent to make Congress the most powerful branch. Sets congressional terms: 2 years for members of the House of Reps., 6 years for members of the Senate. No limit on # of terms.

Expressed powers-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 Defence 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. To establish an uniform Rule of Naturalization, (later law made one a citizen either through jus soli (birth on U.S. soil) or Jus Sanguinis (birth to American parents)) To coin Money,. To provide for the Punishment of counterfeiting

Expressed powers-article I:Section 8 Continued 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 and Discoveries; (Copyrights/patents) To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, To declare War, To raise and support (Armies and a Navy) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The President s Expressed Powers: Article II, section 2 & 3 Commander in Chief Grant Pardons (except in impeachment cases) Make Treatise with consent of Senate (2/3) Appoint ambassadors and Fed. Judges/Justices with Senate approval and fill other executive vacancies.

Implied Powers: the Elastic Clause Also known as the necessary and proper clause: (Congress can) make all Laws which shall be necessary and proper for carrying into Execution the (expressed) Powers, and all other Powers vested by this Constitution in the Government of the United States...

Denied Powers Article I: Section 9- Congress can t tax imports or exports deny writs of Habeas Corpus (a court order to show cause for imprisoning someone) except for times of rebellion or where public safety is concerned Create post defacto laws (retro active) Give preference to any state or tax interstate trade No member of the Federal gov t can accept gifts (bribes)

Concurrent Powers Create and enforce laws Collect taxes, and borrow money Charter Banks

Article III: the Supreme Court states that their will be a Supreme Court with appellate jurisdiction.

Interstate Compact: Article IV def; states can t enter into agreements with one another without Congressional consent Ex: Emergency Management Assistance Compact (EMAC), Colorado River Compact, Driver License Compact (DLC)

Full Faith and Credit clause: Article IV, Section 1 Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Go to http://en.wikipedia.org/wiki/full_faith_and_cre dit_clause and read application to family law.

Extradition Clause: Article IV, Section 2 A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

Article V: Amending the Constitution

Supremacy Clause: Article VI 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 This article goes on to explain that all judges are bound to follow the Constitution

Reserved Powers: 10 th Amendment 10 th 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. Ex: Education, Intrastate commerce (sales tax), original jurisdiction concerning most criminal and civil acts that go to court.

McCulloch v. Maryland Maryland (and other states) were collecting taxes on the Bank of the United States. McCulloch, head of the Baltimore Branch of the U.S. bank refused to pay the tax. The Maryland Court of Appeals, declared the U.S. Bank unconstitutional, stating the Constitution was silent on the right of the Federal gov t to create a bank. The decision was appealed to the U.S. Supreme Court. The Supreme Court ruled the bank was constitutional. Chief Justice Marshall offered a broad interpretation of the word necessary in the Elastic Clause, claiming the ends (Congress intent to carry out its expressed power) justified the means (creating the bank). This case thus greatly broadened the scope of Congress implied powers.

Marbury v. Madison In Marbury v. Madison, Chief Justice John Marshall explained in his opinion that the Judiciary Act of 1789, which granted the Supreme Court the authority to issue writs forcing Secretary of state Madison to honor the appointments of the previous administration, violated the Constitution because the Constitution did not grant Congress the power to make such a law.