Checks & Balancesin

The Constitution

1. Definitions of Checks and Balances

2. The Founders’ View on Checks and Balances- Vertically- Horizontally

3. The Actual Words of The Constitution in Regards to Checks and Balances

- Vertically (States)- Horizontally (Legislative, Judicial, Executive)

4. Modern Day Abuses of Constitutional Checks and Balances

5. What We Can Do About It

What We Will Cover:

Definitions

Sovereignty

The highest level of decision making authority; a state of supreme rule; also self rule

Definitions

Jurisdiction

The extent or range of power or authority

Definitions

State

An independent country; a geographic and people-separated area distinct from other nations or lands

Definitions

Federalism

A union of government entities into a federation

Different levels of government

A principle based on governing at the lowest appropriate level

LegislativeMakes the Law

Judicial Judges the Law

ExecutiveCarries out the Law

Senate must concur on S.C. Appointments

Tells Congress Laws are unconstitutional

Veto Laws

Congress can override a Veto with 2/3 vote

Court orders

Appoints Judges

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments,

James Madison

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.

James Madison

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

James Madison

“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will . . . be a federal, and not a national constitution.”

James Madison

Thomas Jefferson

“Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.

Thomas Jefferson

“It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

Thomas Jefferson

“It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body.

Thomas Jefferson

“. . . the secret will be found to be in the making himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence . . . to higher and higher orders . . . so as to trust fewer and fewer powers in proportion as the trustees become more and more oligarchical.

Thomas Jefferson

“Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day;

Thomas Jefferson

“Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the State who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte.”

Thomas Jefferson

“When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

U.S. Constitution JurisdictionArticle VI, Clause 2

“This Constitution, and the laws which shall be made in pursuance thereof;

U.S. Constitution JurisdictionArticle VI, Clause 2

“This Constitution, and the laws which shall be made in pursuance thereof; and all treaties made . . . under the authority of the United States

“The [Federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people and the internal order, improvement, and prosperity of the State.”

James Madison

U.S. Constitution JurisdictionArticle VI, Clause 2

“This Constitution, and the laws which shall be made in pursuance thereof; and all treaties made . . . under the authority of the United States shall be the supreme law of the land

U.S. Constitution JurisdictionArticle VI, Clause 2

“This Constitution, and the laws which shall be made in pursuance thereof; and all treaties made . . . under the authority of the United States shall be the supreme law of the land . . . any thing in the Constitution or laws of any state to the contrary notwithstanding.”

The Tenth Amendment of the Constitution

“The powers not delegated to the United States by the Constitution,

The Tenth Amendment of the Constitution

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

The Tenth Amendment of the Constitution

“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.”

The Tenth Amendment of the Constitution

“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.”

“ . . . a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

James Madison

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.

James Madison

“ . . . free government is founded in jealousy and not in confidence; it is jealousy & not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power”

Thomas Jefferson

“The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

James Madison

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

James Madison

CONGRESS passes a law

PRESIDENT can veto

CONGRESS overrides veto with 2/3 vote

The COURTS can judge the law unconstitutional

PRESIDENT can refuse to enforce

CONGRESS can impeach with 2/3 vote

CONGRESS limits appellate jurisdiction, and/or dissolves, reorganizes the lower courts

WE THE PEOPLE can vote members out of Congress

Constitutional Checks on Power

CONGRESS passes a law

SCOTUS maintains original jurisdiction & judicial power

CHECKMATE

Art. I, Sec. 1, Clause 1

Art. I, Sec. 7, Clause 3

Art. I, Sec. 7, Clause 3

Art. II, Sec. 3, Clause 1

Art. I, Sec. 1, Clause 1

Art. III, Sec. 2, Cl. 1

Art. III, Sec. 2, Cl. 2 & Art. I, Sec 8, Cl. 9

Art. III, Sec. 2, Cl. 1

Art. I, Sec. 2, Cl. 5 & Art. I, Sec. 3, Cl. 6

Art. I, Sec. 2, Cl. 2 & Art. I, Sec. 3, Cl. 1 (or XVII Amend.)

Art. I, Sec. 5, Cl. 2

“We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”

Abraham Lincoln

“Human rights can only be assured among a virtuous people. The general government . . . can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any despotic or oppressive form so long as there is any virtue in the body of the people.”

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George Washington

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

John Adams

Trial by JuryAmendment VI

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .”

Double JeopardyAmendment VII

“ . . . and no fact tried by a jury, shall be otherwise re-examined in any court of the United States . . .”

Supreme Court JurisdictionArticle III, Section 2, Clause 2

“In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact . . .”

Supreme Court 5/4 Split Decision

Majority Opinion

5 – Smart

5 – Right

5 – Won

Minority Opinion

4 – Dumb

4 – Wrong

4 – Lost

What did they win? A contest of opinions!

Supreme Court JurisdictionArticle III, Section 2, Clauses 1 & 2

The judicial power shall extend-To all CASES, in law and equity, arising under this Constitution . . .

-To all CASES affecting ambassadors . . .

-To all CASES of admiralty . . .

-To CONTROVERSIES to which the United States shall be party . . .

-To CONTROVERSIES between two or more states . . .

-To CONTROVERSIES between citizens of different states . . .

-To CONTROVERSIES between citizens claiming land . . .

-In all CASES affecting ambassadors . . .

-In all other CASES before mentioned the Supreme Court shall have appellate jurisdiction

Supreme Court JurisdictionArticle III, Section 2, Clause 2

“In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact . . .”

Supreme Court JurisdictionArticle III, Section 2, Clause 2

“In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Supreme Court JurisdictionArticle III, Section 2, Clauses 1 & 2

“The judicial power shall extend to all cases, in law and equity . . .”

“The supreme court shall have appellate jurisdiction, both as to law and fact . . .”

Law – Is the law Constitutional? Equity – Is justice being administered fairly to all parties?

Fact – Was the law broken?Law – Does the law apply in this case?

“ . . . the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.

Alexander Hamilton

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment . . .”Alexander Hamilton

“[The] germ of dissolution of our federal government is in the [composition] of the federal judiciary … working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief with a field of jurisdiction until all shall be usurped.”

Thomas Jefferson

“ . . . to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Thomas Jefferson

“[The duty of the] courts of justice . . . must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”Alexander Hamilton

“On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Thomas Jefferson

“The Constitution[’s] . . . meaning [can] be found in the explanations of those who advocated [it], . . . These explanations are preserved in the publications of the time.”

Thomas Jefferson

Presidential PowersArticle II, Section 2 and 3

“The president shall be Commander in Chief . . . Grant reprieves and pardons . . . Make treaties . . . Appoint ambassadors . . . Judges of the supreme court, and all other officers of the United States . . . Fill up all vacancies that may happen during the recess of the Senate . . . Give to Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient . . . On extraordinary occassions, Convene both houses . . . Receive ambassadors . . take care that the laws be faithfully executed . . .”

“ . . . In a representative republic . . . the executive magistracy is carefully limited, both in the extent and the duration of its power.”

James Madison

Article 1, Section 1, Clause 1

“All legislative powers herein granted shall be vested in a Congress of the United States . . .”

Modern Day Abuses of Constitutional Checks and Balances

Modern Day Abuses of Constitutional Legislative Authority

Laws Made by the Executive Branch

Legislating from the Bench

Congress Legislating Outside of its Enumerated Powers

Laws Made by the Executive Branch

Executive Orders

Article II, Section 3, Clause 1

“[The President] shall take care that the laws be faithfully executed . . .”

Laws Made by the Executive Branch

Executive OrdersAdministrative Law

Article II, Section 2, Clause 2

“[The President] shall appoint . . . all other officers of the United States, . . . which shall be established by law . . .”

Legislating from the Bench

Roe vs. Wade

Congress Legislating Outside of its Enumerated Powers

Patient Protection & Affordable Care Act(Obamacare)

“A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.”James Monroe

Interstate Commerce Original Intent

Congress could regulate things that “directly affect” interstate commerce.

1935

Interstate Commerce According to Schechter v. United States

Congress could regulate economic activity that “substantially affects” interstate commerce.

1992

Interstate Commerce According to United States v. Lopez

“Simply put, Congress may tax and spend.”

Chief Justice Roberts

The Supreme Court’s Stance on Obamacare Today

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

Thomas Jefferson

What, then, can we the people do Constitutionally when all three branches of the Federal government are ignoring their Constitutional duties and are avoiding their Constitutional responsibility to check and balance the abuse of powers of the other branches?

Put pressure on Congress to repeal/defund it?Trust the Supreme Court to overturn it?Elect a new President/Congress from a different party?

3 Step Formula

1 – Educate Yourself

2 – Inform Others

3 – Become Active in the Solutions

The John Birch Society has been doing these things for over 53 years!

Thomas Jefferson

“[T]he several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the . . . Constitution for the United States . . . they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government;

Thomas Jefferson

“and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; . . . that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers;

Thomas Jefferson

“but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Thomas Jefferson

“Whensoever the general government assumes undelegated powers... a nullification of the act is the rightful remedy.”

“ . . . in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.”

James Madison

“The state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty.”

James Madison

“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.

Alexander Hamilton

“.... But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”

Alexander Hamilton

Federal Health Care Nullification Act

Section 1: The legislature of the State of Wyoming finds that:A.The people through the states created the Federal government and gave them certain enumerated powersB.The 9th &10th amendments define in whose hands the powers not specifically enumerated remainC.The assumption of power by the federal government into healthcare interferes with the rights of the people of Wyoming to regulate health care as they see fitSection 2: New lawA.The legislature of Wyoming declares Obamacare null and void and of no effect in this StateB.Any official attempting to enforce an act, law, or rule in violation of this act will be guilty of a felony

“Duties are ours - Results are God’s”

John Quincy Adams