Transcript The Constitution and the Federalist Papers

The Constitution and the
Federalist Papers
POLS 21: The American Political System
“The Constitution does not grant rights, it recognizes them.”
—Jason Laumark
Why the Articles of
Confederation Failed
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The Articles did not give the national
government coercive power over the
states (e.g., the power to tax).
The Articles had no chief executive
and no court system.
The Articles did not allow the national
government to regulate interstate and
foreign commerce.
The Articles did not provide
centralized control over foreign
relations.
Most laws required 9/13 votes to pass.
The Articles could not be amended
without unanimous consent.
Federalists and AntiFederalists are engaged in a
tug-of-war
The state of Connecticut is
represented by a wagon. The
driver warns: “Gentlemen this
Machine is deep in the mire and
you are divided as to its
releaf…”
A house divided against itself cannot stand.
Shays’s Rebellion, 1786
“I hold it that a little
rebellion now and then is
a good thing, and as
necessary in the political
world as storms in the
physical… It is a medicine
necessary for the sound
health of government.”
—Thomas Jefferson
Why did the Articles of Confederation create
such a weak national government?
King George III
WEAK
Shays’s Rebellion
STRONG
…it is expedient that on the second Monday in May next a
convention of delegates who shall have been appointed by the
several States be held in Philadelphia for the sole and express
purpose of revising the Articles of Confederation….
John Jay
James Madison
Alexander Hamilton
FEDERALIST #10
Madison on the "Mischiefs of Faction"
Remove the causes?
OR
Control the effects?
In Madison’s “republican remedy,” government is divided time and
time again in order to control the influence of faction by preventing a
dangerous concentration of power.
BRANCH OF GOVERNMENT
Legislative
LEVEL OF GOVERNMENT
House
Executive
Judicial
Senate
Federal
State
Local
POWER
Cross-cutting
cleavages block
minority factions
Madison’s “Republican Remedy”
Majority
FACTION
“Extend the sphere” to increase
the diversity of interests
competing for power and
attention
A system of representation
filters out selfish interests
Madison was not
terribly worried about
minority factions…
Checks and balances allow
to counteract ambition”
Should he “ambition
have been?
Separation of powers prevents a
concentration of power
Minority
A system governed by majority
rule means that minority factions
will be outvoted
Factions Today
“By a faction, I understand a number of citizens, whether
amounting to a majority or a minority of the whole, who are united
and actuated by some common impulse or passion, or of interest,
adverse to the rights of citizens, or to the permanent and
aggregate interests of the community.”
—James Madison, Federalist No. 10
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Majority?
Minority?
Guiding
Principles
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Social contract theory
Separation of powers
Checks and balances
Federalism
“The United States Constitution has
proven itself the most marvelously
elastic compilation of rules of
government ever written.”
—Franklin D. Roosevelt
Understanding the Constitution
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Which branch of government did the
Framers fear most?
Is this a democratic document? Has it
become more democratic over time than
the Framers intended?
How should we interpret the Constitution?
In a loose way or a strict way?
Should we venerate the Constitution?
How powerful is it as a written document?
Which branch
of government
did the framers
fear the most?
ARTICLE 1
Section 1.
All legislative Powers herein granted shall be vested in
a Congress of the United States, which shall consist of
a Senate and House of Representatives...
ARTICLE 1
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, and with the
Indian Tribes...
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures...
To constitute Tribunals inferior to the supreme Court...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures
on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer
Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions...;--And
To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof...
ARTICLE II
Section 1.
The executive Power shall be vested in a President of
the United States of America. He shall hold his Office
during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected,
as follows:
Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and
Representatives to which the State may be entitled in
the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector...
ARTICLE III
Section 1
The judicial Power of the United States shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain
and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their
Services a Compensation, which shall not be
diminished during their Continuance in Office...
Understanding the Constitution
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Which branch of government did the
Framers fear most?
Is this a democratic document? Has it
become more democratic over time than
the Framers intended?
How should we interpret the Constitution?
In a loose way or a strict way?
Should we venerate the Constitution?
How powerful is it as a written document?
Is this a democratic document?
PRESIDENT
Four year terms
Electoral
College
nominates
JUDICIARY
Lifetime terms
confirms
State
Legislatures
SENATE
Six-year terms
VOTERS
HOUSE OF
REPRESENTATIVES
Two-year terms
Understanding the Constitution
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Which branch of government did the
Framers fear most?
Is this a democratic document? Has it
become more democratic over time than
the Framers intended?
How should we interpret the Constitution?
In a loose way or a strict way?
Should we venerate the Constitution?
How powerful is it as a written document?
How should we interpret the Constitution?
Things Not in the Constitution
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Political parties
The president’s cabinet
Executive privilege
The right to privacy
The word “slavery”
Judicial review
The right to vote
Separation of church and state
“There are those who find legitimacy in fidelity to what
they call ‘the intentions of the Framers.’ In its most
doctrinaire incarnation, this view demands that Justices
discern exactly what the Framers thought about the
question under consideration and simply follow that
intention in resolving the case before them… But in truth
it is little more than arrogance cloaked as humility. It is
arrogant to pretend that from our vantage we can gauge
accurately the intent of the Framers on application of
principle to specific contemporary questions… We current
Justices read the Constitution in the only way that we
can: as Twentieth Century Americans. We look to the
history of the time of framing and to the intervening years
of interpretation. But the ultimate question must be,
what do the words of the text mean in our time? For the
genius of the Constitution rests not in any static meaning
it might have had in a world that is dead and gone, but in
the adaptability of its great principles to cope with current
problems and current needs.”
—Justice William J. Brennan, Jr. (1906-1997)
"…[A] major check on judicial
power, perhaps the major check, is
the judges’ own understanding of
the proper limits to that power…
Once adherence to the original
understanding [of the Constitution]
is weakened or abandoned, a
judge… can reach any result… As
we have seen, no set of propositions
is too preposterous to be espoused
by a judge or a law professor who
has cast loose from the historical
Constitution.“
— Judge Robert H. Bork
Judicial Activism vs. Judicial Restraint
When I became a judge, I stopped being a
attorney.
that was aI have
big no
I come beforepracticing
the committee
withAnd
no agenda.
change
in role.
The role
of can
a practicing
platform. Judges
are not
politicians
who
promise to
attorney
is to achieve
a desirable
do certain things
in exchange
for votes.
I haveresult
no for
clientaincommitment.
the particularIfcase
hand. But
agenda, but Ithe
do have
I amatconfirmed,
judgecase
can’twith
think
way.
A judge
I will confrontaevery
anthat
open
mind.
I will can’t
fully
havethe
anylegal
agenda,
a judgethat
can’t
any
and fairly analyze
arguments
arehave
presented.
outcome views
in anyofparticular
case
I will be openpreferred
to the considered
my colleagues
certainly
doesn’t
have aon
client.
on the bench.and
AndaIjudge
will decide
every
case based
the
The to
judge’s
onlyofobligation
— and
record, according
the rule
law, without
fearit’s
or afavor,
obligation
— isremember
to the rule
of law.
to the best of solemn
my ability.
And I will
that
it's my
And
what
thatand
means
is that
job to call balls
and
strikes
not to
pitchinorevery
bat. single
case, the judge has to do what the law
requires.
—John Roberts
—Samuel Alito
If the concept of “original intent” were
applied today, what would the result be?
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Affirmative action
Abortion
Capital punishment
Gun control
School prayer
Campaign finance
Health care
Is the debate of judicial activism vs.
judicial restraint purely political?
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Clinton impeachment
Bush v. Gore (2000)
Health care
The Impeachment
of President Clinton
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“The President, Vice
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President and all civil
Officers of the United
States, shall be removed
from Office on
Impeachment for, and
Conviction of, Treason,
Bribery, or other high
Crimes and Misdemeanors”
(The U.S. Constitution,
Article II, Section 4) .
The subjects of its jurisdiction are
those offenses which proceed from
the misconduct of public men, or, in
other words, from the abuse or
violation of some public trust. They
are of a nature which may with
peculiar propriety be denominated
POLITICAL, as they relate chiefly to
injuries done immediately to the
society itself (Federalist #65).
Bush v. Gore (2000)
Jeffrey Toobin, writing for The New
Yorker, says that Bush v. Gore was no
novelty, despite the Court famously
declaring it was a single-use decision.
"What made the decision in Bush v. Gore
so startling was that it was the work of
Justices who were considered, to greater
or lesser extents, judicial conservatives.
On many occasions, these Justices had
said that they believed in the preeminence
of states’ rights, in a narrow conception of
the equal-protection clause of the
Fourteenth Amendment, and, above all, in
judicial restraint. Bush v. Gore violated
those principles.”
The Affordable Care Act
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The Commerce Clause describes an enumerated power listed
in Article I, Section 8 of the U.S. Constitution. It states that
Congress shall have power "To regulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes.”
Understanding the Constitution
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Which branch of government did the
Framers fear most?
Is this a democratic document? Has it
become more democratic over time than
the Framers intended?
How should we interpret the Constitution?
In a loose way or a strict way?
Should we venerate the Constitution?
How powerful is it as a written document?
Should we venerate the Constitution?
“We must recognize that
substantial responsibility for the
defects of our polity lies in the
Constitutional itself.”
Sanford Levinson
Insufficiently democratic
The Constitution
Significantly dysfunctional
Even if you support having a Senate in
addition to a House of Representatives, do you
support as well giving Wyoming the same
number of votes as California, which has
roughly 70 times the population?
Are you comfortable with an Electoral College
that, among other things, has since World War
II placed in the White House five candidates—
Truman, Kennedy, Nixon (1968), Clinton (1992
and 1996), and Bush (2000)—who did not
receive a majority of the popular vote?
Are you concerned that the president might
have too much power, whether to spy on
Americans without Congressional or judicial
authorization or to frustrate the will of the
majority of both houses of Congress by
vetoing legislation with which he disagrees on
political, as opposed to constitutional,
grounds?
Do you really want justices on the Supreme
Court to serve up to four decades and, among
other things, to be able to time their
resignations to mesh with their own political
preferences as to their successors?
Should we venerate the Constitution?
“What effect does it [the Constitution] have
on the quality of our lives? And the answer
to that, it seems to me, is, Very little. The
Constitution makes promises it cannot keep,
and therefore deludes us into complacency
about the rights we have. It is conspicuously
silent on certain other rights that all human
beings deserve. And it pretends to set limits
on government powers, when in fact those
limits are easily ignored.”
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Racial equality
Free speech
Economic justice
Gender equality
War powers
Howard Zinn
What is federalism?
Federalism is a form of government in
which power is divided between national
and state government. Each has its own
independent authority and its own duties.
Why Federalism?
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Federalism
tyranny
Federalism
uniformity
Federalism
Federalism
Federalism
the people
checks the growth of
allows unity without
encourages experimentation
provides training grounds
keeps government closer to
States: Meth Labs of Democracy!
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states-meth-labs-of-democracy
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states-meth-labs-of-democracy---missouri
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states-meth-labs-of-democracy---kansas--again-
The Federal Division of Powers
GRANTED POWERS
RESERVED POWERS
CONCURRENT POWERS
Examples include:
Examples include:
Regulate interstate and
national trade
Establish local governments Taxation of citizens and
businesses
Coin money
Declare war
Maintain armed forces
Establish a postal system
Enforce copyrights
Sign treaties
Conduct elections
Establish schools
Police powers (e.g., the
inherent authority of a
government to impose
restrictions on private
rights for the sake of public
welfare, order, and
security)
Examples include:
Borrow and spend money
Establish courts
Pass and enforce laws
Protect civil rights
These are powers federal and state
governments have in common;
they are not shared powers.
Election Reform
Should the United States nationalize
election rules and procedures?
Education Reform
Should the federal government attempt to equalize
school expenditures across states (similar to
Vermont’s own Act 60)?
Inequality in Public School
Expenditures
RANK
AVERAGE
EXPENDITURE PER
PUPIL PER YEAR
New Jersey
1
$9,774
New York
2
$9,623
Alaska
3
$8,963
Connecticut
4
$8,817
Rhode Island
5
$7,469
Massachusetts
6
$7,287
Maryland
7
$7,245
Pennsylvania
8
$7,109
Delaware
9
$7,030
Michigan
10
$6,994
STATE
Inequality in Public School
Expenditures
STATE
Wisconsin
Vermont
Oregon
RANK
11
12
13
AVERAGE
EXPENDITURE PER
PUPIL PER YEAR
$6,930
$6,750
$6,436
Maine
Ohio
Wyoming
14
15
16
$6,428
$6,162
$6,160
Illinois
West Virginia
17
18
$6,136
$6,107
Hawaii
Minnesota
19
20
$6,078
$6,000
Inequality in Public School
Expenditures
RANK
21
22
23
AVERAGE
EXPENDITURE PER
PUPIL PER YEAR
$5,935
$5,906
$5,859
Indiana
Kansas
Florida
24
25
26
$5,826
$5,817
$5,718
Montana
Iowa
27
28
$5,692
$5,483
Colorado
Missouri
29
30
$5,443
$5,383
STATE
Nebraska
Washington
New Hampshire
Inequality in Public School
Expenditures
RANK
31
32
33
AVERAGE
EXPENDITURE PER
PUPIL PER YEAR
$5,327
$5,222
$5,217
Georgia
Nevada
North Carolina
34
35
36
$5,193
$5,160
$5,077
California
Oklahoma
37
38
$4,992
$4,845
South Carolina
Arizona
39
40
$4,797
$4,778
STATE
Virginia
Texas
Kentucky
Inequality in Public School
Expenditures
RANK
41
42
43
AVERAGE
EXPENDITURE PER
PUPIL PER YEAR
$4,775
$4,775
$4,761
New Mexico
Arkansas
Alabama
44
45
46
$4,586
$4,459
$4,405
Tennessee
Idaho
47
48
$4,388
$4,210
Mississippi
Utah
49
50
$4,080
$3,656
STATE
South Dakota
North Dakota
Louisiana
Average SAT Scores by State
STATE
North Dakota
Iowa
Minnesota
RANK
1
2
3
AVERAGE
COMBINED SCORE
ON SAT
1107
1099
1085
Utah
Wisconsin
South Dakota
4
5
6
1076
1073
1068
Kansas
Nebraska
7
8
1060
1050
Illinois
Missouri
9
10
1048
1045
Average SAT Scores by State
STATE
Tennessee
Mississippi
Michigan
RANK
11
12
13
AVERAGE
COMBINED SCORE
ON SAT
1040
1036
1033
Alabama
Oklahoma
Louisiana
14
15
16
1029
1027
1021
New Mexico
Montana
17
18
1015
1009
Arkansas
Wyoming
19
20
1005
1001
Average SAT Scores by State
RANK
21
22
23
AVERAGE
COMBINED SCORE
ON SAT
999
980
979
Ohio
Oregon
Arizona
24
25
26
975
947
944
Washington
New Hampshire
27
28
937
935
Alaska
West Virginia
29
30
934
932
STATE
Kentucky
Colorado
Idaho
Average SAT Scores by State
RANK
31
32
33
AVERAGE
COMBINED SCORE
ON SAT
917
909
908
Massachusetts
California
Vermont
34
35
36
907
902
901
New Jersey
Delaware
37
38
898
897
Maine
Virginia
39
40
896
896
STATE
Nevada
Maryland
Connecticut
Average SAT Scores by State
RANK
41
42
43
AVERAGE
COMBINED SCORE
ON SAT
893
892
889
Hawaii
Rhode Island
Indiana
44
45
46
889
888
882
Pennsylvania
North Carolina
47
48
880
865
Georgia
South Carolina
49
50
854
844
STATE
Texas
New York
Florida
Note that the highest spending states are NOT the highest achieving
states. Why? Does this mean that money doesn’t matter?
RANK IN
SPENDING
RANK
IN SAT
New Jersey
1
37
28
New York
2
42
3
20
Alaska
3
29
Utah
4
50
Connecticut
4
33
Wisconsin
5
11
Rhode Island
5
45
South Dakota
6
41
Massachusetts
6
34
Kansas
7
25
Maryland
7
32
Nebraska
8
21
Pennsylvania
8
47
Illinois
9
17
Delaware
9
38
Missouri
10
30
Michigan
10
13
RANK
IN SAT
RANK IN
SPENDING
North Dakota
1
42
Iowa
2
Minnesota
STATE
STATE
Reforming Emergency Response
Should we federalize emergency
response to terrorist attacks or national
disasters, such as Hurricane Katrina?
Hurricane Katrina
Key Players
FEDERAL LEVEL
• George W. Bush, president (R)
• Michael Chertoff, Secretary of the Dept. of Homeland Security
• Michael Brown, Director of FEMA
STATE LEVEL
• Kathleen Babineaux Blanco, governor of Louisiana (D)
LOCAL LEVEL
• Ray Nagin, mayor of New Orleans (D)
But… who is in charge?
What do families need to
cope with crises?
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Housing assistance (HUD, FEMA)
Income replacement (UI, DUA)
Health care (Medicaid)
Cash assistance (TANF)
These are
federally
funded, but
administered
locally
These
programs are
shared
federal-state
programs
After Katrina
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Cross-jurisdictional
complexity
Short-term solutions to
a long-term problem
Strained fiscal capacity
Lack of clarity
Need for an appropriate
federal role