Transcript Document

Checks & Balances
in
The Constitution
What We Will Cover:
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
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
Legislative
Makes the Law
Tells Congress
Laws are
unconstitutional
Veto Laws
Congress can
override a Veto
with 2/3 vote
Court orders
Executive
Carries out the Law
Senate must
concur on S.C.
Appointments
Judicial
Appoints
Judges
Judges the Law
“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
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.”
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.
“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
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.
“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
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.”
“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.”
Thomas Jefferson
U.S. Constitution Jurisdiction
Article VI, Clause 2
“This Constitution, and the laws which
shall be made in pursuance thereof;
U.S. Constitution Jurisdiction
Article 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
James Madison
“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.”
U.S. Constitution Jurisdiction
Article 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 Jurisdiction
Article 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.”
James Madison
“ . . . 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.
“ . . . 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
James Madison
“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.
“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
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.”
Constitutional Checks on Power
WE THE PEOPLE can vote members out of Congress
Art. I, Sec. 2, Cl. 2 & Art. I, Sec. 3, Cl. 1 (or XVII Amend.)
CONGRESS can impeach with 2/3 vote
Art. Art.
I, Sec.
2, Cl.5,5Cl.
& Art.
I, Sec.
2 I, Sec. 3, Cl. 6
PRESIDENT can refuse to
enforce
SCOTUS maintains original
jurisdiction
judicial
Art. II, Sec. 3,&
Clause
1 power
Art. III, Sec. 2, Cl. 1
CONGRESS limits appellate
CONGRESS overrides veto Art.
jurisdiction,
and/or3 dissolves,
I, Sec. 7, Clause
with 2/3 vote
reorganizes the lower courts
Art. III, Sec. 2, Cl. 2 & Art. I, Sec 8, Cl. 9
TheI,COURTS
can 3judge the law
PRESIDENT can veto
Art.
Sec. 7, Clause
unconstitutional Art. III, Sec. 2, Cl. 1
I, Sec. 1, Clause
1 a law
CONGRESS
passes
CONGRESS passes a law Art.
Art. I, Sec. 1, Clause 1
“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
George Washington any despotic or oppressive form
so long as there is any virtue in
the body of the people.”
“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 Jury
Amendment VI
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury . . .”
Double Jeopardy
Amendment VII
“ . . . and no fact tried by a jury, shall be
otherwise re-examined in any court of the
United States . . .”
Supreme Court Jurisdiction
Article 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
Minority Opinion
5 – Smart
4 – Dumb
5 – Right
4 – Wrong
5 – Won
4 – Lost
What did they win? A contest of opinions!
Supreme Court Jurisdiction
Article 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 Jurisdiction
Article 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 Jurisdiction
Article 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 Jurisdiction
Article 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?
Alexander Hamilton
“ . . . 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 . . .”
Thomas Jefferson
“[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.”
“ . . . 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
Thomas Jefferson
“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.”
Presidential Powers
Article 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
Modern Day Abuses of Constitutional
Checks and Balances
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
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 Orders
Administrative 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)
Interstate Commerce Original Intent
James Monroe
“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.”
Interstate Commerce According to
Schechter v. United States
Congress could
regulate things that
“directly affect”
interstate commerce.
1935
Interstate Commerce According to
United States v. Lopez
Congress could
regulate economic
activity that
“substantially affects”
interstate commerce.
1992
The Supreme Court’s Stance on
Obamacare Today
“Simply put, Congress
may tax and spend.”
Chief Justice Roberts
“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;
“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.”
Thomas Jefferson
James Madison
“ . . . 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.”
Alexander Hamilton
“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.”
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 powers
B. The 9th &10th amendments define in whose hands the
powers not specifically enumerated remain
C. 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 fit
Section 2: New law
A. The legislature of Wyoming declares Obamacare null and
void and of no effect in this State
B. 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