Principles of the Constitution

1. Principles of the Constitution

2. Popular Sovereignty • Legitimacy of govt. is derived from the people • “… government of the people, by the people, for the people” • Democratic republicanism

3. Separation of Powers • Montesquieu • Madison feared tyranny of govt. that controlled all three branches  division of powr. among legislative, executive, judicial branches • Danger of one branch combining forces with another  checks and balances

4. Checks and Balances of Power • System of restraints in which each branch can check the other two. Reflects the fear of tyranny • Examples: veto, 2/3 override, appointment and confirmation, treaty-making and ratification, defense funding/declaration of war and Commander-in-Chief • Political independence within each branch • Branches not dependent on others for election or continuance • exception: federal judges dependent on Pres. for appointment. Life term reduces Pres. influence once appointed

5. Staggering terms within each branch prevents voters from gaining control over the whole govt.

6. Staggered Elections 2 yrs 4 yrs 6 yrs 8 yrs 10 yrs 12 yrs House House House House House House President President President Senate Senate 1/3 1/3 Midterm Congressional elections check on exec.

7. Modifications of checks and balances: • Political Parties • In theory, should weaken checks and balances – brings branches together. Obama and Pelosi. Const. divides govt., parties unite govt. • Prevalence of divided govt.: Pres of one party, Congress controlled by other

8. Growth of bureaucracy • A large administrative structure typified by formal processes, standardization, hierarchic procedures, and written communication, with a hierarchy of bureaus and agencies. • Development of numerous agencies with legislative, executive, and judicial functions • Congress often grants broad authority to agencies to carry out Congressional will • Congress established IRS to collect taxes, then granted it authority to help write, enforce, and settle disputes over the tax code • Effect: blurring of lines between executive, legislative, and judicial functions, and therefore a weakening of checks and balances

9. Concentration of power in the executive branch • Technology has amplified the “bully pulpit” • Pres. especially effective at using this “electronic throne” to rally America behind his agenda  weakening of checks and balances of power • Some argue media, interest groups, Congress all effectively use new media technologies, thereby strengthening checks and balances • Emergence of US as world power after WWII • US as leader of the free world • Only remaining super power since the end of the Cold War • The Executive branch taking lead in foreign crises further exalts executive and diminishes checks and balances

10. Limited Govt. • Dilemma: need more effective national govt., (too weak under Articles), but fear tyranny of too much pwr. • Grants of pwr. • “The Congress shall have the power to lay and collect taxes” • By listing powers Congress is granted, it limits its powers to those specified • Denials of pwr. • “No bill of attainder or ex post facto laws shall be passed” • Constitutionalism • Govt. powr limited to those pwrs contained within its constitution. Rulers bound by conditions set forth in their constitution • Bill of Rights, especially Amendment 10, suggests a federal govt. with limited pwrs and state govts. With substantial pwr.

11. Federalism • Division of govt. pwr. Between federal and state governments (much more on this later)

12. Judicial Review • Pwr of courts to strike down laws & govt. actions • Not explicitly provided in Const. • Established by Marbury v Madison, 1803 • Case Facts: Election of 1800 elected Democratic Republican Jefferson • Federalist Adams: lame duck • Adams appoints “midnight judges” • Not all appointments delivered in time • Jefferson orders Madison to disallow delivery of remaining commissions, Marbury included. • Marbury asks Court to issue writ of mandamus (under Sect. 13 of Jud. Act, 1789) to order delivery.

13. Decision of Marshall Court: writs of mandamus through original jurisdiction in this type of case: unconstitutional. • Thereby rules on constitutionality of law without confrontation • Affected Court only • Jefferson won, but lost. His political enemy, Federalist John Marshall, expanded the power of the Court • Effects of Marbury: citizens can challenge constitutionality of laws by initiating lawsuits  litigation has become an important way of making public policy

14. but only need 5 of 4 to override the 535 9 Which are the representatives for over 300,000,000 VS That’s .000001% of the population overriding the will of the people 535 435 Congressmen + 100 Senators

15. Changing the Constitution Informally (without adding Amendments) • Const. as a framework  details to be filled in later • Difficult to muster supermajorities needed for formal changes  creation of informal methods • Acts of Congress (Jud. Act of 1789) • Judicial rulings (Plessy/Brown) • Presidential action (police actions since WWII, executive privilege, impoundment) • Customs and traditions (Cabinet, political parties, Cong. committee system, presidential nominating conventions)

16. “Constitution belongs to the living, not the dead” (Jefferson) • Jefferson believed each generation may need their own const. • Why hasn’t there been a new constitution? (ours is oldest written const. on earth) • Changing the Const. formally (Amendment process) • Legacy of Articles: unanimous vote needed to amend  impossible to amend  needed to be easier, but not too easy • Dissatisfaction with Court decisions (flag burning/gay marriage) and congressional gridlock  recent calls for amending const.

17. Process of amending reflects federal system • Proposal • 2/3 vote from both houses (All done this way). No pres. Veto allowed • Const. convention called by Cong. at request of 2/3 of states (never done) • Fear of “runaway” convention – may implement wholesale changes to Const., stray from specific issue and “improve” other parts of Const. as well

18. Ratification. 2 methods. Cong. Decides which to use • ¾ of state legislatures • All but one (21st A.) done this way • Most state legislatures ratify with simple majority, some require a supermajority of 3/5, 2/3, or ¾ • Ratifying conventions in ¾ of states • 21st Amend. Done this way • More directly democratic method: people elect delegates who state their positions on the proposed amendment. Voters are in essence voting for or against the amendment by voting for the delegates for or against it • Time limits for ratification: generally 7 years (except ERA)