The ConstitutionThe Basics

A Blueprint for Government

Goals of the Constitution: outlined in the Preamble1. Form a more perfect union- strengthen the relationship

between the states2. Establish Justice-provide laws and law enforcement that

is/are reasonable, fair, and impartial3. Ensure Domestic Tranquility-keep order within the country4. Provide for the common defense- defend against foreign

enemies5. Promote the general Welfare- allow all citizens to benefit

from government protection6. Secure the Blessings of Liberty-protect liberties won through

revolution for future generations

Problems with GoverningBig Question: How do you allow people maximum freedom while controlling the worst aspects of human behavior?

Framers agreed there must be laws and laws must be enforced

Enforcement must have threat of punishment What would stop a government with this type of

power from turning power vs. its citizens?

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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Answer:

• The Framers created a government that: 1. Divided and balanced government2. Made users of government power subject to will

of the people through voting3. Placed specific restraints on the government’s

ability to violate the rights of its citizens (with the Bill of Rights)

Six Basic Principles of the Constitution

1. POPULAR SOVEREIGNTY- government gets its power from the people and the ultimate political power rests with the people

Citizens exercise their sovereignty by electing leaders

2. LIMITED GOVERNMENT: THE powers and functions of government are restricted by the Constitution and other laws

Also known as Rule of Law: every member of society, including the ruler of a government must obey the law and are not above it.

Bill of Rights Civil Society: voluntary social and civic clubs formed around shared

interests and values constrain government through education of citizenry. Educated voters hold government accountable

3. SEPARATION OF POWERS: duties of government split into 3 branches

Article I- creates and empowers Congress with legislative powers Made up of House and Senate

Article II- establishes the office and duties of the President as chief executive and Commander in Chief

Article III-establishes the Judicial Branch, including the Supreme Court

4. CHECKS AND BALANCES: system created that gives each branch of government the power to change or cancel the acts of the others.Basic Examples: Congress makes law, President can VETO (reject), and courts can

rule on any laws constitutionality. Veto can be overruled by 2/3 vote in both houses.

Federal judges serve for life, but President appoints judges and Senate must approve appointments. Congress can IMPEACH(remove) judges

President is Commander in Chief of the military but only Congress can declare war

Executive branch spends the money but House of Representatives controls the money through budget process. “Power of the purse”

5. JUDICIAL REVIEW: The judicial branch’s power to determine whether the actions of the executive and legislative branches are constitutional.

If any part of a law or action found to violate the Constitution, it is deemed UNCONSTITUTIONAL

US Supreme Court hear cases to determine constitutionality of: Federal laws and actions State laws or actions

Where does the Court get this power? Federalist Papers #51 Article III, Section 2: “the judicial power shall extend to all cases…

arising under the Constitution” Marbury vs. Madison: Supreme court gives itself this power

6. FEDERALISM: powers of the government are distributed between the national and state government

Great debate as to which entity should have more power:Arguments for National Government:

NECESSARY AND PROPER CLAUSE: Article I, Section 8 states Congress “shall make all laws…necessary and proper for carrying into execution their foregoing powers.”

SUPREMACY CLAUSE: Article VI states that US laws are “the supreme law of the land”

Arguments for State Government: 10th Amendment: “The powers not delegated to the US

by the Constitution , nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

THE ELASTIC CLAUSE

Amending the ConstitutionTo Change or not to change…

"Whatever be the Constitution, great care must be taken to provide a mode of amendment when experience or change of circumstances shall have manifested that any part of it is unadapted to the good of the nation… amendment is certainly requisite to maintain it in a course of action accommodated to the times and changes through which we are ever passing." --Thomas Jefferson to A. Coray, 1823. ME 15:488

Jefferson

“Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? ”

Madison

The Amendment Process

Process defined in Article V: 2 step process- any amendment must be

proposed and then ratified Article V provides 2 methods for proposal and

2 for ratification Each step in process requires a supermajority

vote

Proposing an Amendment

1. By Congress, with the approval of at least 2/3 of House and 2/3 of Senate

2. By delegates at a national convention that is called by Congress at the request of at least of state legislatures

All proposed amendments have come via method 1.

Ratification

2 methods but Congress determines the method for ratification!1. Sent to state legislatures for approval-

requires ¾ of states to ratify2. Citizens elect delegates to conventions in

each state to consider the amendments- requires ¾ of state conventions to ratify

All but the 21st Amendment ratified by state legislatures

Amendment Project: You be the Teacher

Directions:1. Pick 5 Amendments (11-27)2. Create a Powerpoint or Prezi presentation that includes the

following information:1. Date of ratification2. A brief summary of the amendment3. A short argument for and against4. A relevant court case that referenced the amendment5. A scenario in which the amendment is being violated. You may use a

fictitious character “Johnny” to help.6. At least 3 visuals per amendment

All submissions must be submitted to class website dropbox by midnight on due date.

FEDERALISMFederalism: organization of government in which different levels of government share authority over the same land and people

Why Federalism

Founders concerned with concentration of power.

Framers based organization of government upon theories put forth by French philosopher Charles Montesquieu in Spirit of the Law (1784)Divided government best option to

preserve libertyFramers decided on 2 levels of

government: State and National

Powers of the National Government

Expressed Powers (aka Enumerated): powers specifically (written out) given to each branch of the federal government.Listed in Article I, II, and III.

Implied Powers: not expressed in constitution but logical extensions of expressed powers Necessary and Proper Clause: Under Article I, Section 8

of the Constitution, Congress has the power "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 any Department or Officer thereof".

The Powers of the federal

government are few and defined!

National Powers cont.

Inherent Powers: powers historically recognized as belonging to all governments that conduct business of a sovereign nation. i.e. power to conduct foreign affairs and acquire

new territory

State (Reserved)Powers

Protection of states’ rights written in to Bill of Rights “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. -10TH Amendment to the US Const.”

Reserved powers not mentioned in the Const. belong to the states because the Const. neither gives the powers to the national government or prohibits them to the state.

“The powers of the states are numerous

and indefinite”

Concurrent (Shared) Powers

If the constitution doesn’t state that a power belongs exclusively to the national government, then a state can exercise that power too.What happens when state and federal law come

into conflict?Supremacy Clause:  ”The Constitution and the laws

of these United States…shall be the supreme law of the land” Article VI, section 2

The Limits of PowerFramers believed strongly in limiting the power of government. Clear limits set for both state and national governments.Limits on National Government

Expressly prohibited in Constitution (i.e. Bill of Rights) powers reserved to the states

Limits on State GovernmentsArticle I, section 10 denies states the power to:

Coin money, tax imports/exports from other states, having their own armies, conducting own foreign policy

Powers denied to both levels:Neither can violate constitutional rights, can’t grant titles of

nobility, deny anyone a jury trial, can’t pass ex post facto laws (after the fact)

Nation and State RelationsNation and the Fifty States

All states must have a republican form of government

Must protect states from foreign invasions and domestic unrest

States must be treated equallyNational government may admit new states, but

can’t split states up or change their boundaries.

Nation and State Relations Cont. Relations between the states: states given right to manage

own affairs but required to cooperate with one anotherFull Faith and Credit Clause: Article IV requires all states “give

full faith and credit” to (recognize) the public acts, official records, and judicial proceedings of every other stateExtradition: return a person charged for a crime in one state to that

statePrivileges and Immunities Clause: Article IV specifies that

citizens of each state should receive the benefits of any state in which they happen to be.i.e. same sales tax and police protection, but exceptions like reduced

fees for in state tuition and public health services

Use Your Brain!

What about Local Government? There is no mention of local government in Constitution? So who has the power to create local governments? Why?

The Big Question?

The federal government provides federal money (raised through income taxes) to state and local governments to spend on various projects and policies. These funds often come with strings attached and can be withheld if Federal government chooses to. Why might it be a mistake for state and local leaders to depend on grants-in-aid for state budgets?

American Federalism: Conflict and Change

• American Federalism has changed over the years:– Supreme Court has been instrumental with use of

Judicial review to increase power of federal government

– Federalism best broken down into 4 historical eras:Dual federalism, cooperative federalism, creative federalism, new federalism

Dual Federalism “Layer Cake”

• View that constitution is a pact between sovereign states and both national and state governments were equal authorities – Strict reading of constitution

• From 1789-1930’s• McCulloch v. Maryland

– Creation of National bank• Marshall Court: implied power to create

bank, state can’t tax a national institution

A House Divided: Nullification and Secession

• In the years leading up to Civil War, states became divided over slavery– Southern states believed in right to nullify (refuse to

follow) laws they deemed to be objectionable– Under Doctrine of Nullification, if a state challenged a

law, ¾ of other states need to ratify law for it to become law.

• If states did, the state challenging law could choose to secede (leave the Union)

– Doctrine of Secession put to test with Civil War• Union Victory firmly established national supremacy and

ended idea of nullification and secession

The New Deal

• In 1929 stock market crash would lead to the Great Depression

• In 1933, FDR created extensive government programs to address needs of Americans– New Deal is major change: 1st time Federal

government assumed responsibility for social and economic welfare of the people

– State and national government worked together to meet crisis of Great Depression

• Known as Cooperative Federalism

– Opponents to growth of Federal power challenged programs but Supreme Court upheld most New Deal legislation

Cooperative Federalism

Dual Federalism

The Great Society• In 1960’s Lyndon Johnson increased

power of national government through a series of initiatives to reduce poverty and inequality

• Great Society programs called Creative Federalism: Federal government gave federal money (in form of grants) to state and local governments to achieve goals– Funds came with strings attached: no funds if

states not cooperating fully

New Federalism

• In the 1980’s some politicians worked to reverse the growth of federal power– The era is known as New Federalism

• The Reagan Years- During the 80’s President Reagan worked to return power to the states. Believed the states better suited to serve the needs of its people than the federal government

• The Devolution Revolution: Following Reagan, Republican politicians continued with policies to reduce size and power of Federal government• These policies were known as the policy of Devolution• Bill Clinton declared “era of big government is over”

Federalism Today

• Following terrorist attacks of 9/11/2001, government power expanded

• Fiscal Federalism: influencing state policies through policies of taxing, spending, and providing aid – Uses the income tax to raise money for Grants-in-aid

• Use of Grants and Mandates to influence state actions:– Categorical Grants: most grants in this form. Can only be used for a

specific purpose or category– Block Grants: grants given for broad purpose, allows states to spend

money as they say fit– Federal Mandates: demands for states to carry out certain policies

as condition to receive federal money• Important tool in civil rights and environmental policies