The Declaration of Independence on Executive Power

““The History of the present King of Great Britain is a history The History of the present King of Great Britain is a history of... absolute tyranny over these states…” of... absolute tyranny over these states…”

The Declaration lodges 27 accusations against the King, falling into these categories:-- blocked the passage of laws-- abused and abolished colonial legislatures-- blocked legislative elections-- controlled the judiciary-- imposed ‘big government’-- subjected the people to military occupation-- cut off trade with the rest of the world-- imposed taxes without the colonists’ consent-- denied trial by jury-- waged war by a variety of means on the colonies-- has refused to answer petitions by the colonists

Prominent Political Philosophies/Ideologies

• The Ideological Scale: Liberal/Conservative (Left/Right)

Governmental Economic InterventionHigh Low

Socialists Conservatives

High

Low

Govern

men

t A

ction on

S

ocial/Morality Liberals Libertarians

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Upper LevelGovernmentUpper LevelGovernment

Lower LevelGovernmentLower LevelGovernment

Lower LevelGovernmentLower LevelGovernment

Upper LevelGovernmentUpper LevelGovernment

Unitary Confederal

Authority Authority

UNITARY VS. CONFEDERAL GOVERNMENT

Daniel Shays (1747 – 1825)

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Convention Politics: Competing Plans FEATURE VA. PLAN N.J. PLAN CONSTITUTION

Congress Two Houses One House Two Houses Represents Population States One of Each Size of Simple Extraordinary Concurrent Majority

President Single Plural Single Selection by Congress by Congress by Electoral College Removal by Congress by Governors by Congress

Courts Selection Congress Executive President nominates, Senate confirms

Ratification People States State Conventions

Annapolis Resolution

• “In this persuasion, your Commissioners submit an opinion, that the Idea of extending the powers of their Deputies, to other objects, than those of Commerce. . will deserve to be incorporated into that of a future Convention; they are the more naturally led to this conclusion, as in the course of their reflections on the subject, they have been induced to think, that the power of regulating trade is of such comprehensive extent, and will enter so far into the general System of the federal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal System. . .”

• “That there are important defects in the system of the Federal Government is acknowledged by the Acts of all those States. . . In the choice of the mode, your Commissioners are of opinion, that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist. . .”

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September, 1786

The Virginia Plan

(from the National Archives)

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Congress

Representation in Congress

Decision Rule

Executive

Removal of Executive

Courts

Ratification

State Laws

Virginia Plan New Jersey Plan Constitution

Two houses (bicameral)

Both houses based on population

Simple Majority

Single, elected by congress

By Congress

National Judiciary, elected by Congress

By the people

Congress can override

One house (unicameral)

Equal representation for each state

Extraordinary majority

More than one person

By a majority of the states

Judiciary appointed by executive

By the states

“National supremacy”

Two houses

House/population, Senate/states

Concurrent majority

Single, elected by electoral college

By Congress

President nominates Senate confirms

By state conventions

National supremacy

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Fed 51

Article I. Section 2. Paragraph 3.Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons... and... three fifths of all other Persons.

Changed by the 14th Amendment, section 2.

3/5ths Compromise

Congress’ vs. President’s Powers

Article I. 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 II. Section 1.

The executive Power shall be vested in a President of the United States of America.

(emphasis added)

Classical Liberalism inthe Declaration of Independence

“… We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed…” Return

INDIRECT ELECTION Return

* The 17th Amendment (1913) provided for direct election of senators, eliminating the states’ role in electing senators.

VOTERS

STATES

ELECTORALCOLLEGE

PRESIDENT

HOUSE OFREPRESENTATIVES

SENATE*

SUPREMECOURT

Federal

Upper LevelGovernmentUpper LevelGovernment

Lower LevelGovernmentLower LevelGovernment

Lower LevelGovernmentLower LevelGovernment

Upper LevelGovernmentUpper LevelGovernment

Unitary Confederal

Authority

Authority

UNITARY - CONFEDERAL - FEDERAL FORMS GOVERNMENT

Upper LevelGovernmentUpper LevelGovernment

Lower LevelGovernmentLower LevelGovernment

Authority

CitizensCitizens CitizensCitizens CitizensCitizens

AuthorityAuthority

Authority

?

STATES’ RIGHTS DOCTRINE

National Government

National Government

CitizensCitizens

State Government

State Government

“Interposition”

“Nullification”

14th AMENDMENT (Ratified in 1868)

Section 1. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…

(emphasis added)

National GovernmentNational Government

State GovernmentState Government

No Interactions Between Layers

LAYER CAKE FEDERALISM

National GovernmentNational Government

State GovernmentState Government

Multiple Interactions

MARBLE CAKE FEDERALISM

Year of Aid

19951990198019701960195019401932192219131902

Fe

de

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id a

s %

of

Sta

te/L

oca

l Sp

en

din

g

30

20

10

0

Federal Aid to States and Localities

PICKET FENCE FEDERALISM

Civil Liberties Illustrated

National Government

National Government

CitizensCitizens

Civil LibertiesCivil Liberties

Protects Liberties

Oppressive Actions

Civil Rights Illustrated National

GovernmentNational

Government

CitizensCitizensCitizensCitizens

Protector ofIndividualRights

DiscriminatoryActions

Race and the Constitution(paraphrased)

Article I. Section 2.: Slaves count as 3/5ths a person when determining state populations

Article I. Section 9.: Congress cannot prohibit the importation of slaves prior to 1808.

Article IV. Section 2.: Slaves who escape to states where slavery is illegal must be returned to their owners.

13th AMENDMENT (Ratified in 1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Level of Knowledge

MOST IMPORTANT NEWS SOURCE1959-1994

Year

1994

1992

1991

1990

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1986

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Newspapers

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MagazinesPe

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IDEOLOGICAL SELF-IDENTIFICATION1973-1998

Year

1998

1994

1991

1989

1987

1985

1983

1980

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Perc

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50

40

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20

10

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Self-Identification

Moderate

Conservative/

Very Conservative

Liberal/

Very Liberal

Slight Liberal

Slight Conservative

Sources of Questionnaire Errors

Paradox of Majority Rule

Federalist No. 51 (excerpt):“In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger.”

Civil Liberties and Civil Rights in Federalist Papers #51

“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 {protect civil rights}; and in the next place, oblige it to control itself {protect civil liberties}.

FED 51

• Problem: We need government to protect us from a “state of nature”– The problem IS human nature!

• Quandry: Government can abuse its subjects, too.– Need a government that controls the people

(SECURITY/ORDER), but also controls itself (LIBERTY)

A (partial) solution

• How can we control governmental power?– “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.”

Why just separating the powers is not enough. . .

• What if the president could persuade Congress not to use its checks against him/her? Why wouldn’t the president try to concentrate his/her power? What would stop him/her?

• The solution IS human nature!

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Human Nature

“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.”

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Building a Better Governmental Mousetrap

“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.”

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The Compound Republic

GOVERNMENTAL POWER

Legislative Executive Judicial

Legislative Executive Judicial

Checks & Balances

Separation of Powers

Federalism

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Separation of Powers

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

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Human frailty is the key to good governance. . .

• “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.”

• “The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

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Checks and Balances

• “In republican government, the legislative authority necessarily predominates.”– “The remedy for this inconveniency is to divide the legislature into

different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

• As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

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Separation of Powers and Checks and Balances Return

Separation of Powers: Establishes each branch of government and defines the powers of each.

Checks and Balances: Gives each branch the power to override the actions of the other branches

Legislature Executive Judicial

The Legislature can make laws

The Executive can enforce laws

The Judiciary can interpret laws

•Confirms executive appointments (Senate)

•Override executive veto

•Impeach executive and judicial officials

•Veto legislation

•Recommend legislation

•Grant pardons

•Refuse to enforce laws/judicial rulings

•Nominates judges

•Review legislative acts

•Review executive acts

•Issue injunctions

Bill of RightsAmendment ICongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment IIA well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment IVThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

Bill of RightsAmendment VIIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense

Amendment XThe 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.

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Pluralism—a product of republicanism

Group 1 Group 2

Group 3 Group 4

Group 6Group 5

Group 7

Group 8

Group 9

We want help for

fisherman!

Rhode Island Pennsylvania

New York

New Jersey Massachusetts

Vermont

Georgia

North Carolina

South Carolina

We want help for oat

growers!

We want help for basket-makers!

We want help for dairy farmers!

We want support for merchants!

We want support for

cotton!

We want support for maple

producers!

We want support for

rice growers!

We want support for tobacco!

Hey, let’s tax southern

agricultural products!!

Like cotton, tobacco, and rice. Great

idea!

Cool!

Awesome! This idea rocks!

Tax them back to the Stone Age!!

Horrible idea!

Uhhh, no.

This idea stinks!

Group 1 who? I don’t really know

anybody from Rhode Island. . .

Who?

What?Where?

Let’s eat some syrup. . .

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Percent of Governmental Spending by Level of Government 1927-1943

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0

10

20

30

40

50

60

1927 1929 1931 1933 1935 1937 1939 1941 1943

Federal

State

Local

Pluralism’s positive effects within the republic: Protecting Minorities

• From Federalist #51:

“Whilst all authority in [the government] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

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The “necessary and proper” clause

Article I, Section 8: “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.” Return

Amendment X

“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.” Return

Logical problem: Implied Powers vs. Reserved Powers

All possible Governmental Power, at every level of government

Enumerated Powers of the

national government

Enumerated Powers of the

national government

Enumerated Powers of the

national government

Reserved Powers of the States Amendment X

Implied powers of the national government, from the “necessary and proper” clause

Friction!!

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The Supremacy Clause

Article VI, Section 2: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." Return

McCulloch v. Maryland

• “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” Return

The Commerce Clause

• Article I, Section 8: “The Congress shall have the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

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Growth in Federal Spending—Fiscal Federalism Return

Federal $ as a % of State and Local Budget

0

5

10

15

20

25

30

35

1902 1913 1922 1932 1940 1950 1960 1970 1980 1990 2000 2002

“New Deal” Spending

“Great Society” Spending

Growth in Federal Spending 2—Devolution Return

Federal $ as a % of State and Local Budget

0

5

10

15

20

25

30

35

1902 1913 1922 1932 1940 1950 1960 1970 1980 1990 2000 2002

“New Deal” Spending

“Great Society” Spending

Period of “Devolution”