Transcript Review: Constitutional Underpinnings

REVIEW: CONSTITUTIONAL
UNDERPINNINGS
KELLY WALKER
AP GOVERNMENT
WHAT DO YOU NEED TO KNOW?
The Constitution- Why is it so
important?
• Influence of European
Enlightenment: every problem
could be solved through the use
of reason
• Emerging beliefs in democracy,
liberty, and checking self-interest
WHAT IS GOVERNMENT?
IMPORTANT TERMS
Vocabulary
1.Government-An institution with the power to make
and enforce a societies laws.
2.State-A territory whose population maintains an
organized governmental body that regulates
internal and external affairs (population, territory,
sovereignty, government)
3.Citizen-An officially recognized member of a state
4.Sovereignty-The absolute authority that a
government has over its citizens
5.Law-A set of rules, issued and enforced by a
government, that binds every member of society
6.Public Policies- Decisions and laws that a
government makes in a particular area of public
concern-education, health
WHO WERE THE ENLIGHTENED ONES?
HOW DID THEY INFLUENCE THE FOUNDING
FATHERS?
• John Locke: State of Nature- “people are naturally
free and equal, but freedom led to inequality and
chaos. State of nature changes because humans
are self-centered”. People have natural rights from
the state of nature: Life, liberty and property.
• Second Treatise of Government: people form
governments to protect natural rights- give up
freedom to govern themselves through a Social
Contract between government and the governed.
LOCKE IN THE DECLARATION OF
INDEPENDENCE
• Jefferson heavily influenced by Locke• Freedom, Equality, and Justice: All in the
Declaration of Independence
Other Enlightened Ones:
Hobbs
Montesquieu
Voltaire
Rousseau
JOHN LOCKE 1632-1704
• Wrote Of Civil Government and established the
concept of Natural Rights-A right that is considered
to belong to all people, regardless of time or place:
Being natural to everyone and are not granted or
taken by a government. (inalienable rights)
THE ENLIGHTENMENT THINKERS
•
Thomas Hobbs- English 1588-1679 LeviathanDeveloped the idea of a social contract- The
theory that the people give up their sovereignty in
exchange for peace and order that is provided
by the state.
BARON DE MONTESQUIEU
1689-1755
• French, wrote On the Spirit of Laws. He believed
that there should be a Separation of Powers to have
an effective government. (A distribution of powers
among the branches of government.)
JEAN JAQUES ROUSSEAU 1712-1778
(SWISS)
1. The social contract between citizens and
government was important.
2. Morals and emotion should play a role in
government
3. Forefather of modern communismattacked private property
EARLY INFLUENCES:
AN ENGLISH HERITAGE
(WHAT DID WE BORROW FROM THE
BRITISH?)
•
•
1.
2.
•
1.
2.
Ordered Government: A way to regulate themselves.
Established local governments based on what they knew in
England
Limited Government: Government is restricted in what it may
do
1215 Magna Carta-Great Charter
Rule of Law-everyone must act according to set laws
Representative Government
Council of Nobles
Bicameral-2 chamber legislature Petition of Right 1628-could
not imprison
English Bill of Rights- Monarch could not rule without consent
of Parliament
DECLARATION OF INDEPENDENCE
Second Continental Congress-June 1776
adopted the Declaration of
Independence, written by Thomas
Jefferson
• Contained the following:
1. Unalienable rights/natural rights
2. Social Contract
3. Mapped out a new kind of government for
the colonies
•
THE CONSTITUTION: GUIDING
PRINCIPLES
It’s all about the POWER!!!!!
Know These……………..
1.
2.
3.
4.
5.
Popular Sovereignty
Separation of Powers
Checks and balances
Limited Government
Federalism
POLITICAL POWER
• Power: The ability of one person to get another
person to act in accordance with the first person’s
intentions
• Authority: The right to use power
• Legitimacy: Political authority conferred by law or
by a state or national constitution
HOW IS POLITICAL POWER
DISTRIBUTED?
• Majoritarian Politics: Leaders are sharply
constrained by what most people want. Generally,
the actions of officeholders will follow the
preferences of citizens closely.
• http://www.mrc.org/biasalert/2009/20090910032749.aspx
THEORETICAL PERSPECTIVES
• Democratic Theory: Stems from a time in history when all
forms of government were authoritarian. Strong roots in
British History- Britain had a monarchy with many
controls. Two Models;
1. Direct Democracy: All members of society participate
in government- need a high degree of confidence in
the judgment of ordinary people  The masses would
be influenced by demagogues who would overlook
the rights of the minority- leads to Majoritarianism:
government does what the majority wants
2. Representative Democracy: - A republic is an Indirect
democracy: people hold the ultimate power through
elections
HOW IS POLITICAL POWER
DISTRIBUTED
• Pluralist View: No single entity
has the power: There are too
many of them!
• http://www.foundingfathers.info/federalist
papers/madison.htm
• The belief that competition among all
affected interests shapes public policy.
• Resources remain divided among such
different kinds of elites that all, or almost
all, relevant interests have a chance to
affect the outcome of decisions.
• Who is this man?
PLURALIST THEORY
ANOTHER DEFINITION!
• Pluralism: the argument that representative
democracies are based on group interests that
protect the individual’s interests by representing him
or her to the government. Too many interests exist
to allow any one cohesive group of elites to rule.
ELITE THEORY
• A representative democracy is not really based on
the will of the people, but that there is a relatively
small, cohesive class that makes almost all the
important decisions for the nation. A privileged
majority should rule in the name of the people with
a controlled amount of input from citizens
OTHER FORMS OF POLITICAL POWER
• Marxist View: Government is a reflection of
underlying economic forces
• Power Elite View: Power held in a few
• Bureaucratic View: Power held by appointed
officials
BACKGROUND TO THE CONVENTION
• Articles of Confederation: limited
1.
2.
3.
4.
5.
6.
7.
national govt!
The central govt. had only a unicameral Congress
where each state was represented equally
No executive or judiciary
Could not levy taxes- could only get $ from the states
Could not regulate commerce between the states
No law enforcing powers were granted to Congress
No process for Amending the Articles
States retained all powers not specifically granted to
Congress
THE TIPPING POINT
• States quarreled over borders and tariffs, country in
debt and foreign countries ready to take
advantage of a weak nation
• Shay’s Rebellion: Farmers rebelled against
foreclosures in Massachusetts
THE PURPOSE OF THE US
GOVERNMENT
Two main Questions:
1. How should we govern?
2. What should government do?
•
•
•
•
•
•
•
Form a more perfect union-the constitution
Establish Justice- Rule of Law
Insure Domestic Tranquility- preserve order
Provide for the common defense
Promote the general welfare- provide public services
Collect taxes
Socialize the Young
1787: CONSTITUTIONAL CONVENTION
• 55 Delegates to Philadelphia in May 1787
• Planters, bankers, businessmen, lawyers
• Had all read: Locke, Voltaire, Hobbs, Montesquieu
1. Alexander Hamilton: Federalist
2. George Washington: chairman- Federalist
3. James Madison: Father of the Constitution
4. Benjamin Franklin: 81- attended Continental
Congress in 1776
AGREEMENTS AND COMPROMISES
• Common belief in balanced government
• Concerned with the excesses of government and
agreed with Locke that government should protect
property
• Ben Franklin- proponent of liberty and equalityproposed all white males vote- most felt only
property owners should vote (ordinary people
would scheme to deprive property owners or
become tools of demagogues.
• Issue: balance of power between large (strong
national govt) and small states (strong state govts)
FORMS OF GOVERNMENT
No Government is the same.
3 Classifications of Governments:
1. Who may participate?
2. Distribution of power within the state.
3. Relationship between executive and legislative
branches.
THE STATE
Dominate Political Unit of the World
Population
Territory
Sovereignty: it has supreme and absolute
power within its own territory and can
decide its own foreign and domestic
policies
4. Government
•
1.
2.
3.
SOURCES OF AUTHORITY
Monarchy
Head of state is a
hereditary position
Constitutional
MonarchyKing or queen is only
the ceremonial head of
state
Real power lies in
another branch of
government
Republic
(Democratic)
People are the source
of authority
Government is made
up of representatives
elected by the people
Dictatorship-





(authoritarian-rulers
answer only to
themselves, not the
people)
Political and/or military
power, wealth and/ or
social position are the
source of leaders’
authority
Power is achieved and
maintained through force
Autocracy-rule by one
Oligarchy-rule by many
Extreme Dictators are
Totalitarian rulers-seek
complete control over all
aspects of citizens’ lives
POWER WITHIN LEVELS OF
DEMOCRATIC GOVERNMENTS
Presidential System
A system of government
in which the legislative
and executive branches
operate independently of
each other.
United States
Parliamentary System
A system of government
in which power is
concentrated in a
legislature. The
legislature selects one of
its member s, a prime
minister, as the nation’s
leader.
Great Britain
POWER AMONG LEVELS OF
GOVERNMENT
Unitary System
Federal System
Central Government
holds all legal power
Local government has
no independent power;
carries out decisions
made by the central
government
Great Britain
National, state, and
local governments
share power
 All levels have
power to establish their
own laws, elect
officials, and create
agencies
United States
Confederal
System
Independent states
join together
Each state is
represented in a central
organization. Central
organization carries out
policies made by
representatives
UN, European Union
AGREEMENTS AND COMPROMISES
1. The Great Compromise or Connecticut
Compromise: Virginia Plan- strong central govtpower resides in large states- New Jersey Planstrong state govt.s- settled on: bicameral
legislature: upper house- each state would be
represented equally, (chosen by the state
legislatures) and the lower house, represented by
population
2. Three-fifths Compromise
3. Selection of the President: The Electoral College
AMENDING THE CONSTITUTION
• Formal:
1. Proposed by 2/3 vote of each house of Congress
and ratified by ¾ state legislatures
2. Proposed by 2/3 vote of each house of Congress
and ratified by specially called conventions in at
least ¾ of the states
3. National constitutional convention requested by
2/3 of states legislatures and ratified by ¾ of state
legislatures
4. National constitutional convention and ratified by
specially called conventions in ¾ of the states
AMENDING THE CONSTITUTION
• Informal
1. Legislative Branch- Congress has passed laws that
reinterpret and expand constitutional provisions-
Commerce clause allows Congress to
regulate and promote interstate and
international commerce. (railroad,
internet)
2. Executive Branch- Presidents negotiate executive
agreements with other countries
3. Judicial Branch- Judicial review
BEARD’S CRITICISM OF THE FOUNDERS
• An Economic Interpretation of the Constitution 1913
• Stems from Founder’s protection of private property
and believed they created a constitution that
benefited their economic interests
• Scholars disagree, saying the founder’s voted on
the economic interests of their states
FEDERALISTS V. ANTI-FEDERALISTS
• Ratification: formal approval of the constitution- 9
states
• Anti-federalists were afraid of too much power in
the hands of the central govt. wanted protection of
individual freedoms and rights
FEDERALIST PAPERS
• #10- 2 issues 1. Factions- no matter
how troubling the message of various
factions, they are essential to the
legitimacy of a democracy. 2. Argued
that separation of powers and
federalism check the growth of
tyranny
• #51- explained why strong
government is necessary
THE BILL OF RIGHTS
Biggest Compromise EVER!!
Guaranteed individual freedoms and rights
Added in 1791
17 were originally proposed
5 were eliminated
1 was clarified by the Supreme Court
(reapportionment of representatives)
• 1 became the 27th amendment (1992)
•
•
•
•
•
•
RATIFYING THE CONSTITUTION
• Antifederalists-opposed the constitution- did not
include a Bill of Rights Virginia and New York (Patrick
Henry, Richard Henry Lee, John Hancock, Samuel
Adams)
• Federalists-Wrote the Federalist Papers (Alexander
Hamilton, James Madison, John Jay)
• Bill of Rights Added
• New Hampshire 9th state to ratify the constitution
1788
• First Congress met April 30, 1789
• George Washington 1st president
FEDERALISM
• The division of sharing power between
the national government and the
states
• National interests have clashed with
states’ rights
• Founding principle of the United States
UNITARY, FEDERAL CONFEDERAL
• Unitary- Power in central govt.
• Federal- power is shared between national
govt.and state govt.’s
• Confederal- power is spread among sub-units or
states
_______________________________________
Unitary System
(UK, China, France)
Federal System
(US, Russia, Canada)
Confederal System
(US under the Articles)
HISTORICAL DEVELOPMENT OF
FEDERALISM
Shaped through time through:
• Laws
• Supreme Court decisions
• Debates among elected officials
and statesmen
HISTORICAL DEVELOPMENT OF
FEDERALISM
Federalism in the Constitution
• Founders did not want a unitary
system- fostered tyranny
• Confederation did not promote a
strong nation (articles were weak)
• Developed a hybrid federal system in
the Constitution
HISTORICAL DEVELOPMENT OF
FEDERALISM
Delegated Powers (written in the constitution)
1. The War Power- National govt. is responsible for
protecting the nation and declaring war
2. The Power to Regulate Interstate and Foreign
Commerce- Commerce Clause- Article 1 section 8
clause 3
3. The Power to Tax and Spend- appropriate moneyhuge power/control
4. Other powers: coining money, postal system,
borrow against its credit
HISTORICAL DEVELOPMENT OF
FEDERALISM
Concurrent Powers (powers shared by national and
state governments)
1. Levying taxes
2. Establishing and maintaining court systems
Federalism still limits states powers as states cannot
unduly burden its citizens with taxes nor can they
interfere with the functions of the national
government. They may not abridge the terms of a
treaty of the United States
HISTORICAL DEVELOPMENT OF
FEDERALISM
Reserved Powers ( those powers not listed in the
constitution that are reserved to the states; held by the
states alone)
1. 10th Amendment
2. Establishing local governments
3. Regulating trade within the state
4. Police power (authority to legislate for the protection of
the people- health, morals, safety, and welfare)
5. These powers are not listed in the constitution; power
struggle between national government and states still
exist
HISTORICAL DEVELOPMENT OF
FEDERALISM
Prohibited Powers (denied to either the national
government, the states, or both)
1. Federal: can’t tax exports
2. States: can’t tax exports or imports nor make
treaties or declare war
HISTORICAL DEVELOPMENT OF
FEDERALISM
• The “Necessary and Proper” Clause (Article 1
section 8)
• Loose construction: the constitution should be
broadly interpreted (Hamilton) the national
government represented the supreme law of the
land- Article 6
• Strict construction: the constitution should be
narrowly construed (Jefferson) federal government
was the main threat to personal liberty
HISTORICAL DEVELOPMENT OF
FEDERALISM
McCulloch v. Maryland
• Supreme Court favored national supremacy advocated
by Chief Justice John Marshall
• Cashier of the Bank of the United States refused to pay a
tax levied on the bank by the state of Maryland. State
officials arrested him and he appealed to the Supreme
Court
• Case set a precedence for national supremacy and
questioned the right of the federal government to
establish a bank, since no such right is enumerated in
Article 1
• The Maryland law that established the tax was
unconstitutional- (Article 6)- states may not tax a federal
institution!!!
HISTORICAL DEVELOPMENT OF
FEDERALISM
The Nullification Controversy:
The right of a state to declare null and
void a federal law that in the state’s
opinion, violated the constitution. (Civil
War and slavery)
HISTORICAL DEVELOPMENT OF
FEDERALISM
The Commerce Clause
1824- Gibbons v. Ogden
1. Ogden was given exclusive rights by the state of New York to
operate steamboat ferries between New York and New Jersey
2. Gibbons obtained a license from the US government to operate
boats in the same area
3. Ogden sued
4. Issues:
A. Definition of commerce- New York Supreme Court narrowly
define commerce- did not include navigation or the transport of
people
B. National Govt.s powers over interstate commerce- Does the
national govt have the right to control commerce within a
state’s borders?
C. State govt.’s powers over interstate commerce; Is interstate
commerce a concurrent power that states may share with the
national govt.?
Marshall: interpretation of the commerce clause expanded the
power of the national govt.
HISTORICAL DEVELOPMENT OF
FEDERALISM
Expansion of the Commerce Clause
• Spurred by the Industrial Revolution: child labor laws
• New deal changed the way the government viewed
commerce: the Court refused to review appeals
challenging government regulation of rights of
employees, farm cultivation and the stock market
• Today, the clause is broadly interpreted and the govt.
regulates a wide range of commercial activates:
transportation, agriculture, labor relations, finance and
manufacturing
• No type of commerce is held exclusively by the states
HISTORICAL DEVELOPMENT OF
FEDERALISM
• Civil Rights and the Commerce Clause
• Discrimination affects interstate
commerce- clause is upheld in the
1964 Civil Rights Act- discrimination in
public accommodations
HISTORICAL DEVELOPMENT OF
FEDERALISM
• Reining in the Commerce Power
• Since the 1990s the court has somewhat limited the
national govt.s power under the commerce clause
• US v. Lopez 1995 Congress exceed its authority
when it banned possession of guns within 1,000 feet
of any school- had nothing to do with commerce….
Unconstitutional
• US v. Morrison 2000 the Court held that the 1994
Violence against Women Act overstepped the
Constitution- the act stated violence against
women had a negative affect on commerce.
HISTORICAL DEVELOPMENT OF
FEDERALISM
• Courts upheld Commerce Clause in:
• Compassionate Use Act 1996
http://en.wikipedia.org/wiki/California_Proposition_
215_(1996)
• Conflicted with the federal Controlled Substances
Act
http://en.wikipedia.org/wiki/Controlled_Substances
_Act
• Gonzales v. Raich 2005
http://en.wikipedia.org/wiki/Gonzales_v._Raich
TWO TYPES OF FEDERALISM
1.
a.
b.
1.
Grants-in-aid: the federal government provides millions of
dollars for federal grants to the states
Categorical grants: appropriated by Congress for specific
purposes- cross-over sanctions (no money for highways if
you don’t lower the drinking age) and cross-cutting
requirements- if a university discriminates illegally in one
program, it may lose federal money for all its programs
Block grants: consolidate several categorical grants into a
single “block” for prescribed broad activities such as health
services- New federalism- creeping categorization: congress
attempts to add strings to block grants, eventually making
them categorical grants
Mandates: a rule that tells states what they must do in order
to comply with federal guidelines- unfunded mandates
THE DEVOLUTION REVOLUTION
• Trend: shift power back to the states
• Personal Responsibility and Work Opportunity
Reconciliation Act 1996 sent welfare to the
states
• George W Bush: Compassionate Conservatismregulated federalism that provided expansion
of the national government by increasing the
national standards on states by imposing rules
at times with little if any funding- No Child Left
Behind
• War on terror has slowed devolution
STATES UNDER FEDERALISM
•Full Faith and Credit
•Privileges and Immunities
•Extradition
•State
Compacts/Contracts
Effect on Federalism BASIS OF
CONSTITUTIONAL
FEDERALISM
Constitutional Provision
Supremacy Clause Article 6
State laws, court decisions and constitutions must not be in conflict with
the US constitution- May affect the diversity with which states address
problems
10th Amendment
Reserved Powers
Allows states to take upon themselves the laws necessary to function,
including health and safety- some areas are separate from fededucation
Elastic Clause
Article 1 section 8
Necessary and Proper Clause
Permits Congress to be stretched to fit the times- may intrude on
reserved powers if courts agree it is “necessary”
Powers Denied to the States
Article I Section 10
Only national govt may coin money, go to war or tax imports
Amendment Procedures
Article V
Recognizes the need for the people through the states to ratify changes
to the constitution
Full Faith and Credit
Article IV Section I
States must respect each other’s laws
Extradition
Article IV Section 2
Criminals may not flee to another state to avoid arrest
Privileges and Immunities
Article IV Section 2
Citizens do not forfeit certain rights just because they cross state lines
Commerce Clause
Article I Section 8
States are able to control commerce within their boundaries- Congress
control commerce that crosses state line
McCulloch v Maryland 1819
Recognizes implied powers of the federal govt. Under the elastic clause
Eminent Domain
Amendment V
Kelo v New London CT. 2002
Permits govt. including state/local to take property for public use
STATE POWER
• Issues
1. Gay Marriage
2. Environmental Issues