Constitutional Scheme

1. Constitutional Scheme Five Basic Principles Limiting Majority Control Separation of Powers Checks and Balances Judicial Review Flexibility

2. Limiting Majority Control • With 2-3 people around you discuss the following questions: • How does the Constitution limit the power of the majority? • Why is limiting the power of the majority desirable? In your discussion, consider that democracies are supposed to follow the idea of majoritarianism. • How might one argue that this basic principle of the Constitution proves the economic interpretation of the motives of the framers?

3. Limiting Majority Control • House is only institution of government elected directly by the people • Senate – state legislatures • President – electors • Court – appointed by president • Longer terms for not popularly elected officials • 2 years vs. 4 for president, 6 for Senate and lifetime for judges

4. Separation of Powers • Book definition: a feature requiring each of the 3 branches of government to be relatively independent of the others so that one cannot control the others. • Civics 1 definition: the legislative branch makes the laws, the executive branch enforces the laws and the judicial branch interprets the laws

5. Checks and Balances • A system requiring one branch of government to obtain the consent of another branch in order to undertake some of its functions • With 2-3 people around you discuss specifically how each branch check one or both of the others (see figure 3.2 on p. 50 of the text).

6. Checks and Balances • President: • Checks Congress by the veto • Checks Court by nomination • Court: • Checks president by judicial review • Checks Congress by judicial review • Congress: • Checks president through veto override, impeachment, refusal to approve nominees, budget control • Checks Court through impeachment and confirmation of nominees

7. S-O-P and C&B Exercise Sample Government Essay Question “Separation of Powers” and “Checks and Balances” are often discussed as if they are virtually identical concepts. In fact, they are diametrically opposed. Write an essay agreeing or disagreeing with the foregoing statement. • Discuss and outline answers for both agreement and disagreement.

8. Judicial Review • We’ll have much more on this later. • For now think of the principle as establishing the third branch of government (the Judiciary) as a Constitutional referee empowered to make sure that neither of the other two branches exceed its power.

9. Flexibility – Amending the Constitution Sample AP Exam Question The United States Constitution has endured for more than two centuries as the framework of government. However, the meaning of the Constitution has been changed by both formal and informal methods a. Identify two formal methods for adding amendments to the Constitution b. Describe two informal methods that have been used to change the meaning of the Constitution. Provide one specific example for each method you describe. c. Explain why informal methods are used more than the formal amendment process.

10. Flexibility Formal Amendment Process – 2 Steps • Proposal: • 2/3 of both houses of Congress; or • 2/3 of the states call for a Constitutional convention • Ratification (method to be designated in proposal) • ¾ of state legislatures approve • ¾ of states approve in special ratifying conventions

11. Flexibility Informal Amendment of the Constitution\ • Judicial decisions • Elastic clause • Development of political customs/traditions

12. Remember this?Problems involving decentralized power • No national military – had to rely on state militias • No ability to tax citizens directly – had to rely on state taxing power • No control over national commerce – states controlled their own trade and made their own rules • No control over currency – states had the ability to coin their own money • No method to settle disputes among states – states were sovereign and subject to no controls • Supermajority needed to make decisions • Unanimity needed for amendment • No effective national executive • No effective controls over state action to insure continuity or uniformity in laws or form of government • Did the Constitution solve these problems? Look at the Constitution and see (p.745-753; hint: start with Article I, section 8)

13. Constitutional Solutions • Congress given power to raise and equip army and navy (Art I, sect 8) • Congress given power to tax (I, 8) • Congress given power over interstate commerce (I, 8) • States denied power to coin money (I, 10) • Creation of national judiciary (Art III) • Simple majority needed for most decisions (Constitution is silent on voting requirements – Congress’ rules provide for majority) • Amendment procedure difficult but possible (Art V) • Effective national executive created (Art II) • Supremacy clause (Art VI); guaranty of republican form of government (Art IV, sect 4)

14. Ratification Debate • Process – required 9/13 states to agree (was this legal?) • Parties • Federalists (for Constitution) vs. Antifederalists (against the Constitution) • Public relations coup • See text table 2.5 on p. 53 for descriptions of the backgrounds and government preferences of each side

15. Ratification Debate Basic Arguments • National government will be tyrannical because it is too distant and removed from the people for them to exercise control • countered by argument that government will control itself because of separation of powers and checks and balances • States being closer to the people are better guardians of their liberty • countered by Madison’s pluralistic theory that the tyranny of the majority faction over the minority is more likely in a small political society than a large one

16. Ratification Arguments - Continued 3. Lack of bill of rights endangers personal liberty • countered by several arguments: • The Constitution establishes a limited national government which does not have the power to endanger personal liberty • Separation of Powers and Checks and Balances limit the government’s powers so that it cannot endanger personal liberties • The states have bills of rights – a federal bill of rights would be superfluous • The Constitution contains sufficient safeguards (text – p.48) • attempting to enumerate all rights is impossible, but listing only some will imply that the ones not listed are not protected

17. Ratification Arguments –Next Step • The assignment for the next class and our Constitutional Debate exercise will provide greater detail and insight • . . . Stay tuned

18. Modern Criticisms • Some say the process of amending the Constitution is too difficult and prevents necessary constitutional change. Others argue that the obstacles to amending the Constitution are good because they keep proposals on which opinion may change in the next decade from becoming part of the document. Would our nation be improved if the Constitution were more easily amended? Discuss (in doing so consider the ERA, pp. 56-57, and the proposed marriage amendment, p.66)

19. Modern Criticisms 2. The Constitutional system of separation of powers and checks and balances has created a problem of gridlock and inefficiency. For a superpower in the modern world they make the president too weak and insufficiently accountable. The following suggestions (all of which mirror parliamentary government) as to how the Constitution might be changed have been made: • congressional cabinet members • presidential power to dissolve congress and call for new elections • congressional no confidence votes • no split tickets – a vote for pres means a vote for a rep in his party • single six year term for the president • require pres and congress to run for a concurrent 4 yr term • Discuss and evaluate each suggestion

20. Modern Criticisms 3. The federal government in an attempt to be all things to all people has grown too much and has become financially oppressive. Politics being what it is, there are too many temptations to spend money to help one group or another and too little incentives to curb spending. Courts add to the problem by interpreting laws so as to entitling groups of citizens to expensive benefits. The following solutions have been proposed: • limits on government spending • limits on collection of taxes • balanced budget amendment • line item veto • curbs on power of federal courts • Discuss and evaluate