THE CONSTITUTION

Warning!

•Lots and lots of information in this chapter, If you have ANY questions please ask. If you don’t understand something—please ask. That’s; what I am here for.

•This is probably the most important chapter in the text.

Main Themes

•Federalism•Separation of Powers•Checks and Balances

Goals/Themes

•The institutions the founders created were to perform the three main tasks of governing: making the laws, executing the laws, and adjudicating the laws

•We will examine the constitutional relationship among those institutions

Goals/Themes

•How the founders resolved the issue of relations between regional units (states, in our case) and national government

•The flexibility the founders built into the Constitution to change with the times

Goals/Themes

•Why the government works as well as it does. It’s not because we are Americans—we aren’t smarter than other peoples. But this Constitution has proven to be flexible enough to work for over 200 years.

•And we will save for another time the argument that the government no longer works.

The three branches of government

•All governments must have the power to

▫ Legislate, or make laws

▫ Administer, or execute laws

▫ Adjudicate, or interpret laws

•Because of our separation of powers, we have three branches of government

FEDERALISM

•Know what this means!

Federalism: some terms

•Enumerated powers•Necessary and proper clause•Supremacy clause

Federalism

• Enumerated powers of Congress: congressional powers specifically named in the Constitution (Article I, Section 8)

• Necessary and proper clause: constitutional authorization for Congress to make any law required to carry out its powers; also known as the elastic clause

Federalism• Supremacy clause: constitutional declaration (Article

VI) that the Constitution and laws made under its provisions are the supreme law of the land

• Concurrent powers: powers shared by the federal and state governments

• Where powers begin and end is confusing and controversial

Federalism: alternatives

1. Unitary systems2. Confederation systems

• Pros and Cons of each

Federalism: alternatives

• Unitary system: government in which all power is centralized

• Confederal system: government in which local units hold all the power

Federalism

• Dual federalism: national and state governments responsible for separate policy areas▫ “Layer cake” model of federalism▫ Model prior to the New Deal era (1930s)

• Cooperative federalism: national and state governments share responsibilities for most domestic policy areas▫ “Marble cake” model of federalism▫ Model after 1930s

Federalism

•National powers•State powers•Concurrent powers

•Know some of each

Federalism: effects

• Effects on state politics▫ States compete for citizens and business

• Effects on citizens▫ Citizen access to different levels of government▫ Different levels check each other: Civil Rights Act

(1964)

• Increased flexibility▫ Experimentation with policy▫ Citizens may face different laws, treatment among

states

Federalism History

• Two trends:

▫ Government is growing at federal and state levels

▫ Gradual strengthening of federal government at the expense of states

Federalism History

• John Marshall: strengthened the constitutional powers of the federal government

• Civil War: national domination of the states

• The New Deal: national programs stimulated economy

• Civil Rights: federal government acted against states

Recent History

•During the Bush Sr. and Clinton administrations, states and localities faced fiscal crises as a result of federal government cutbacks, a major economic recession, and the growth of costly mandates emanating from well-intentioned congressional actions

Recent History

•The issue of unfunded mandates became a major factor in the mid-1990s, leading to legislation in early 1995 that attempted to prohibit Congress from such practices.

Recent History

•After the 1994 election, more attention was focused on “devolving” greater authority to the states over social welfare policies. This culminated in the 1996 welfare reforms as well as other acts that push more power back to the states.

Federalism Now

• Devolution: the transfer of powers and responsibilities from the federal government to the states

• Congressional strategies for influencing state policy (Congress members prefer to control policy because they benefit politically)

Federalism Now

•Congress influences state policy by▫ No national government influence▫ Categorical grants▫ Block grants▫ Unfunded mandates

•Devolution has moved forward, but its fate is unclear because issues favor federal government▫ Terrorism ▫ Social issues

INSTITUTIONS

Separation of Powers Checks and Balances

• Separation of powers: the institutional arrangement that assigns judicial, executive, and legislative powers to different persons or groups, thereby limiting the powers of each

• Checks and balances: the principle that allows each branch of government to exercise some form of control over the others

Separation of PowersChecks and Balances

• Remedies

▫ Founders recognized that branches would seek power at the expense of other branches

▫ Constitution separates powers and allows each branch to check the other

Separation of Powers

• Article I sets up legislature• Article II sets up executive• Article III sets up judiciary

• No branch can act independently of other branches

• Fusion of powers: an alternative to separation of powers, combining or blending branches of government

Legislative Branch

•What does it do—what is its purpose•representation•republic vs. democracy•What does the Constitution say? (article I)

Legislative Branch• Legislature: the body of government that makes laws

• Article I sets out the framework for Congress

• Representation over “pure democracy”▫ Republic: a government in which decisions are

made through representatives of the people

• Founders chose bicameral over unicameral legislature, because it provided representation, checks against abuse of power

Executive Branch

•Fears of the founders—why?•What does the Constitution say? (article

II)•Possible alternatives: parliamentary

system

Executive Branch

• Executive: the branch of government responsible for putting laws into effect

• Concerns of the founders▫ Executive could provide stability▫ Fear of tyranny▫ Resolved with single executive: the president

Executive Branch

•What does the Constitution say? ▫Chosen by electoral college▫Article II: length of term, executive powers

•Possible alternative: parliamentary system

Judicial Branch

•What does it do—what is its purpose? •“least dangerous” branch•What does the Constitution say?•Possible alternatives: legislative

supremacy

Judicial Branch

• Judicial power: the power to interpret laws and judge whether a law has been broken

• The “least dangerous” branch: neither purse nor sword

• Judicial review: power of the Supreme Court to rule on the constitutionality of laws

Judicial Branch• Article III: sets up Supreme Court but little else

• Possible alternative: legislative supremacy?▫ British model of no constitution

CHECKS and BALANCES

Checks and Balances

•Separations of powers•Why?

Specific Checks

•congress checks the president•congress checks the court•president checks congress•president checks court•court checks congress•court checks president•(know the chart!)

Amendability

•What does the Constitution say?•Possible alternatives: more difficult or

easier?

Citizens and the Constitution

•What can citizens do? •Initiative, referendum, recall

Recent Changes

•Several decisions by the U.S. Supreme Court over the past decade have breathed new life into the concept of state sovereignty. Some analysts see in those decisions the emergence of a modern form of “dual federalism.”

Recent Changes

•The attacks of 11 September 2001, and the high priority given to Homeland Security is radically altering the priorities and powers of governments at all levels.

Final Word?

•The reality behind the myth of state sovereignty is that, although Washington plays a greater role in the American federal system today than ever before, so do a wide range of other actors. The role of all governments has increased considerably, and there are a growing number of other participants as well.

STUDY QUESTIONS

Study Questions•The political theorist Montesquieu once

said that liberty could only be threatened if the same group who enacted tyrannical laws also executed them. How did the framers of the Constitution react to this idea and how does the Constitution solve the problem? 

Study Questions

•How could the problem of slavery have been dealt with differently in the Constitution? Could your solution have been ratified?

Study Questions•The Constitution was set up with separation

of powers and checks and balances. Congress has the power to declare war, and the president (as commander-in-chief), then conducts the war. Vietnam and subsequent military actions have showed this to be a flawed system. In light of this, how would you change the Constitution to better handle these situations? 

Study Questions•Should the president have a line-item

veto? What would be the implications?

•What was decided in Marbury v. Madison? What was the lasting significance of that Supreme Court decision?

Study Questions

•What do you believe are some of the most glaring weaknesses in the Constitution? How specifically would you address those weaknesses? How would changes in one area effect other areas? 

Study Questions•Briefly discuss the Constitutional powers of

the president. Why were so many of the Founding Fathers fearful of a strong executive? 

•Briefly discuss the Constitutional powers of Congress.

•Briefly discuss the Constitutional powers of the national courts. 

Study Questions•Under the system of federalism outlined in

the Constitution, what is the relationship between national and state governments?

•What are the three main tasks of government? Identify and discuss the institutions the founders created to perform these main tasks of governing the new nation.

Study Questions

•Discuss how American federalism has changed over time? Why have those changes taken place? 

•Discuss the amendment process? How exactly can the Constitution be amended?

Study Questions

•What view of human nature is embodied in the Constitution? Why? Discuss the specific parts of the Constitution which reflect the founders’ views on human nature.

•  Why, in your opinion, has the U.S. Constitution lasted so long, and with so few amendments?

Terms

•electoral college•judicial review•cooperative federalism•Enumerated powers•Unfunded mandates

Terms

•McCulloch v. Maryland•necessary and proper clause•concurrent powers•supremacy clause•dual federalism

Terms

•Nullification•separation of powers•Checks and balances•John Marshall