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GOVPOL Chapter 2 The Constitution
Terms in this set (53)
A nation's basic law. It creates political institutions, assigns for divides powers in government, and often provides certain guarantees to citizens. Constitutions can be either written or unwritten.
Second Treatise of Civil Government (1689)
John Locke--the rights inherent in human beings, not dependent on governments. These rights include life, liberty, and property.
Consent of the government
The idea that government derives its authority by sanction of the people. In an extreme case, the people should have the right to revolt against their government if that government not longer has their consent to govern. This overthrow should be carried out when the injustices are deeply felt.
The idea that certain restrictions should be placed on government to protect the natural rights of its citizens
2 important limits on government to Locke
1.) Governments must provide standing laws so that people know in advance whether their actions will be acceptable
2.) The supreme power cannot take from any man any part of his rightfully gained property without his consent.
Articles of Confederation define
The first constitution of the United States, adopted by Congress in 1777 and enacted in 1781. The Articles established a national legislature (one house), but most authority rested with the state legislatures.
What did the articles require in order to be put into operation?
They needed unanimous consent which is why it took so long for them to go into effect.
Problems with the Articles of Confederation
1.) No taxing power
2.) Transient legislative body
3.) No regulation of commerce
4.) Shay's Rebellion--Daniel Shays, a Revolutionary War Captain, led a series of armed attacks on courthouses to prevent judges from foreclosing on farms. He was an indebted veteran who was angry he never received his pay and was going to lose his property.
Changes in the states following the American Revolution
-Dramatic increase in democracy and liberty, at least for white males
-Many states adopted bills of rights to protect freedoms, abolished religious qualifications for holding office, and liberalized requirements for voting
-Expanded political participation brought a new middle class to power
-The middle class included farmers who owned small homesteads rather than manorial landholders and artisans instead of laborers
-Major power shift occurred--with expanded voting privileges, farmers and craft workers became a decisive majority, and the old elite of professionals, wealthy merchants, and large landholders saw its power shrink. The same change happened in other states as power shifted from a handful of wealthy individuals to a more broad-based group
-The structure of government in the states became more responsive to the people. Power was concentrated in the legislatures because legislators were considered closer to the voters than governors or judges
-Governors were often selected by legislators and were closely watched
Aborted Annapolis Meeting
In September 1786, a handful of leaders assembled at Annapolis, MD, to discuss the ineffectiveness of the Articles of Confederation. Only 5 states were represented. This meeting decided to hold the Constitutional Convention as the poor showing at the Annapolis meeting convinced them that something needed to be done to assert better leadership in the struggling, young United States.
55 men at the Constitutional Convention (12 states present)
-Rhode Island did not send delegates because they believed their opinion (one of such a small state and a stronghold of paper-money interests) would be overwhelmed
-Then men were all well-educated with esteemed positions in the country; many had practical political experience
What did the 55 delegates agree on at the CC?
1) Human nature: self-interested
2) The causes of political conflict
3)The objects of government
4) The nature of a republican government
How did the delegates feel about human nature?
-They believed that people were self-interested.
-Sided with philosopher Thomas Hobbes who asserted men were "solitary, nasty, poor, brutish, and short"--he thought that the people needed a strong monarchy to control their urged
-Although the delegates did not agree about a monarchy to control the people (in fact they were afraid of monarchy and especially of tyranny), they did agree that people were self-interested and there had to be government to reign them in, yet still protect their natural rights
How did the delegates feel about political conflict?
"The most common and durable sources of factions has been the various and unequal distribution of property"
-Factions: interested groups arising from unequal distribution of property or wealth that James Madison attacked in Federalist Paper No. 10. Today's parties or interest groups are what Madison had in mind when he warned of the instability in government caused by factions
-A majority faction could pose a threat to government and must be checked
How did the delegates feel about objects of government?
-Preservation of property was most important
-Governor Morris of Pennsylvania vehemently agreed with Locke in the assertion that "the preservation of property is the end of government"
-As property holders, these delegates could not imagine a government that did not make its principal objective an economic one: the preservation of individual rights to acquire and hold wealth
How did the delegates feel about the nature of government?
-Power should be set against power
-They were influenced in their thinking by the writing of French aristocrat Baron Montesquieu who advocated separate branches of government with distinct powers and the ability to check the other branches
-Limited government would have to contain checks of its own power
-A complex network of checks, balances, and separation of powers would be required for a balanced government
1) The New Jersey Plan
2) The Virginia Plan
3) Connecticut Compromise (great compromise)
5) Political Equality--voting
1) Proposed by William Paterson of New Jersey, the plan called for each state to be equally represented in the New Congress
2) The opposing strategy, suggested by Edmund Randolph of Virginia, called for giving each state representation in Congress based on the state's share of the American population
3) The CT Compromise, suggested by Roger Sherman, was to create a bicameral legislature--a Congress with 2 houses: The House of Representatives and Senate. One body, the Senate, would have equal representation--2 senators from every state. The next body, the House of Representatives, would have representatives based on population.
4) Slavery was a contentious issue--it was legal in every state except Massachusetts. Some delegates, like Governor Morris, condemned the existence of slavery and wanted to abolish it in the new constitution. However, the delegates knew that if they abolished slavery there would be no support for the new constitution from the south and they needed to ratify the document. The delegates did agree that Congress would limit future importing of slaves (they allowed it to be outlawed after 1808). The 3/5 Compromise agreed to count slaves as 3/5 of a person in the count for representation in Congress.
5) Franklin led the debate that national election should require universal manhood suffrage--a vote for all free adult males. But most of the delegates feared mob rule and the will of the lower class population. They decided to leave the decision up to the states. Anyone in a state who was qualified to vote in state elections could also vote in national elections.
What is the Senate's purpose/House's purpose?
The Senate ratifies treaties, confirms presidential nominations, and hears trials of impeachments--citizens in less populated areas, therefore, have a greater say in these key tasks because although they many have a small population, they are guaranteed 3 representatives in Congress.
The House must propose all revenue bills.
Article I, Section 7 states that all revenue bills shall originate in the House of Representatives but the Senate may propose or concur with Amendments as on any other bills. The reason for this is that at the time the Constitution was written, it was felt that Senators would be more wealthy than Representatives and might be willing to spend more government money than the Representatives would. Also, the House with its greater numbers was seen as being the better gauge of the wishes of the people for spending measures.
Revenue bills were only to originate in the House because members of the House of Representatives are the only federal officials elected directly by the people. Senators, up until the ratification of the 17th Amendment in 1913, were chosen by the state legislatures. And the president was chosen by the Electoral College. At the Constitutional Convention in Philadelphia in 1787 it was felt that, in order for the new federal government to have sufficient legitimacy to gain popular support, it was imperative that at least part of the government would always have a popular mandate.
Economic issues (very high on the CC's agenda)
1) What were the economic issues in the country thus far?
2) What did Charles. A. Beard claim about the motives of the founding fathers?
1) -The states had erected tariffs against products from other states
-Paper money was virtually worthless in some states, but many state governments which were controlled by debtor classes, forced it on creditors anyway.
-The Congress was having trouble raising money because they could not levy taxes (only request tax money) and the economy was also in a recession
2) Beard stated that the Founding Fathers were greedy, self-motivated men who sought to increase their own wealth. The framers not only were propertied, upper-class men protecting their interests but also held bonds and investments whose value would increase if the Constitution were adopted.
Individual Rights Issues
1) What are the freedoms offered by the Constitution?
1) The Constitution says little about individual rights because the Founding Fathers believed that by creating a limited government, people's rights would be protected. But it did offer some protections:
a) Prohibits suspension of the writ of habeas corpus: a court order requiring jailer to explain to a judge why they are holding a prisoner in custody
b) prohibits Congress from passing bills of attainder: punishing people without a trial
c) prohibits Congress or states from passing ex facto laws: punishing people with a law created after they committed a certain act, now considered illegal
-prohibits the imposition of religious qualifications for holding office in the national government
-defines strict rules for treason. to be convicted a person must levy war against the US or adhere to and aid its enemies during war. Conviction requires confession in open court or the testimony of 2 witnesses to the same overt act. These are so specific because the framers of the Constitution were technically traitors themselves to Great Britain (and would have been killed if the revolution did not succeed) and therefore were sensitive to the idea of treason
-upholds the right to trial by jury in criminal cases
1) Thwarting tyranny of the majority
2)Limiting Majority control
3) Separating powers
4) Creating checks and balances
5) Establishing a federal system
1.) He feared majority and minority factions. "Ambition must be made counteract ambition"
To prevent the possibility of a tyranny of the majority, Madison proposed the following:
a) Place as much of the government as possible beyond the direct control of the majority
b) Separate the powers of different institutions
c) Construct a system of checks and balances
2) Madison planned to place only one element of government, the House of Representatives, within direct control of the majority. In contrast, state legislators were to elected senators and special electors were to select the president--government officials would be elected by a small minority, not the people themselves. If the majority seized control of the House of Representatives, they still could not enact policies without agreement of the Senate and the president. To further insulate governmental officials from public opinion, judges were given lifetime tenure and senators were given terms of six years, with only 1/3 elected every 2 years, compared with the 2 year election intervals of all members of the House of Representatives.
3) Separation of powers: each feature of the Constitution that requires each of the branches of government--executive, legislative, and judicial--to be relatively independent of the others so that on cannot control the others. Power is shared among these 3 institutions.
4) CHECKS AND BALANCES: features of the Constitution that limit government's power by requiring power be balanced among the different governmental institutions. These institutions continually constrain one another's activities. The president checks Congress by holding veto power; Congress holds the purse strings of government and must approve presidential appointments. They can also override a president's veto. The president could nominate judges, but their confirmation by the Senate was required. The Supreme Court itself established a system of judicial review in the court case Marbury v Madison. It holds the right to deem constitutional any legislation passed by the other 2 branches of government.
5) Sharing of powers between states and federal government
A form of government in which the people select representatives to govern them and make laws.
A system based on the consent of the governed in which representatives of the public exercise the power.
Why does the Madisonian model resist change?
The system of checks and balances and separation of powers favors the status quo. People who desire change must usually have a sizable majority, not just a simple majority of 51%. Those opposed to change need only win at one point in the policy-making process whereas those who favor the change must win at every point. Madison's model encourages moderation and compromise and slows change. It is difficult for either minority or majority to tyrannize, and both property rights and personal freedoms have survived.
Federalists v Antifederalists
-supporters of the Constitution
-led by Madison, Alexander Hamilton, John Jay: Wrote the Federalist papers (a collection of 85 essays) in support of ratification under the pseudonym Publius (the public)
-Opponents of the American constitution; believed the new government was an enemy to freedom and that moneyed interests were trying to subjugate the public.
-One objection was central to the anti-federalists' attacks: the new constitution was a classed based document, intended to insure that a particular economic elite controlled the public policies of the national government.
-There was also no portion of the Constitution which mentioned people's rights
Bill of Rights
The first 10 amendments to the US Constitution drafted in response to some of the antifederalists concerns. These amendments define such basic liberties as freedom of religious, speech, press, freedom to bear arms, defendant's rights, etc
How is the Constitution amended?
Congress can propose an amendment by a 2/3 vote in each house.
A National Convention can propose an amendment requested by 2/3 of the states
State Legislatures can ratify an amendment by a vote of 3/4 of the states
State conventions can ratify an amendment by a vote of 3/4 of the states
Congress has proposed the amendment and state legislatures have ratified it for EVERY SINGLE amendment EXCEPT THE 21ST AMENDMENT, which repealed prohibition.
The 21st amendment was proposed in Congress and then state conventions ratified it.
Equal Rights Amendment
A constitutional amendment passed by Congress in 1972 stating that equality of rights under law shall not be denied or abridged by the US or any state on account of sex. The amendment failed to acquire the necessary support from 3/4 state legislatures.
Constitution and judicial interpretation (Marbury v Madison)
Marbury v. Madison: the 1803 case in which Chief Justice John Marshall and his associated first asserted the right of the Supreme court to determine the meaning of the U.S. Constitution. The decision established the Court's power of judicial review over acts of Congress, in this case the Judiciary Act of 1789 (passed under George Washington)
In Fed 10 this means:
"A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community"
Definition of factions: interest groups that do not have public good in mind
In Fed 10 this means:
"There are two means of curing the mischief of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It can never be more truly said of the first remedy, that it is far worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which essential to animal life, because it imparts to fire its destructive agency. "
There are 2 ways to overcome factions in America:
1) Remove the causes
2) Control the effect
One cannot remove the causes of factions because they would either have to destroy liberty or give everything the same opinions. This is not possible and would create a "worse disease than the remedy". Similarly, one would not destroy air simply because it allows fire to flourish just as they should not destroy liberty because it allows factions to flourish.
In Fed 10 this means:
"A republican, by which a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking...The two great points of difference between a democracy and republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended...
a) The effect of the first difference is, on one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for a purpose.
b) The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party, and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.
c) Extend the sphere and you take in a greater variety of parties and interests; you make it less probably that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and act in unison with each other.
1) A republican government, by nature, will thwart the effects of factions
a) The idea of representation will refine and enlarge public views; the people elected will better represent the views of a large group of people and these views will be moderated so as to please as much people as possible. Because representatives will be elected by the people (a large group of people), they will have the approval of the people and will most likely not be corrupt or have plans of oppression.
b) The great extent of land and citizens in our nation is another safeguard against factions.
c) Because of the great number of people spread out around a huge area, there will be so many ideas and opinions that a majority will not form easily. Moreover, the distance between people will also make it more difficult for people to convene and plan majority overthrow, if this sort of sentiment exists.
In the Constitution, what is Article 1 about?
It is about the legislative branch.
Qualifications for being a representative...a senator?
Rep: 25 years old at least, 7 years a US citizen, and must be an inhabitant of the state he/she represented
Senator: 35 years old at least, 9 years a citizen, must be a resident of the state he/she is the senator of
How does impeachment work?
The House of Representatives has the power to impeach, or accuse an official of the executive or judicial branches of some wrongdoing or misuse of power. The House of Representatives does not decide whether the official is guilty or not. If the House votes to accuse the official, the case does to the Senate for trial, where the trial is presided over by the Chief Justice.
What is the vice president's most important role?
He is the president of the senate, but he has no vote on an issue unless the Senate is divided 50/50--he is the 51st vote.
Also, he is the president if the current president is unable to continue the position.
How does a bill become a law?
A bill must pass both Houses of Congress. If the President signs the bill, it becomes a law. If the President does not agree with the provisions or parts of the bill, he or she can refuse to approve it. In that case the bill does not become a law unless it is passed again. This time 2/3 of the members of each house must vote for it. The bill then becomes a law without the President's approval.
President can VETO but Congress can OVERRIDE
How long does the President have to consider a bill?
10 days. Bills can become law by not being signed or vetoed ten days after they were passed in Congress. However, any bill that is passed by Congress in the last ten days that Congress is in session must be signed by the President to become law. If the bill is not signed within these ten days, it has, in effect, been vetoed. This is called a POCKET VETO.
How does a bill become a law (chart)? Start in the House of Rep.
1) A representative has an idea for a law or is asked to introduce a law
2) His staff writes up the bill
3) The representative introduces the bill in the House. The bill is sent to a committee.
4) House committee collects evidence, holds hearings, suggests amendments, votes.
5) If the committee approves it, the amended bill is sent to the whole house.
6) The House debates and votes.
7) If a majority favor it, the bill goes to the Senate. The bill is sent to a committee.
8) The Senate committee holds hearings, collects evidence, amends bill, and votes.
9) A favorable vote sends the bill to the whole Senate.
10) The Senate votes. If a majority favor it, the bill is returned to the House.
11) The House considered the Senate amendments and votes.
12) A conference committee from both houses rewrites any unacceptable amendments
13) Both houses vote on the amended bill
14) A favorable vote sends it to the president
15) If the president signs it, it becomes a law
16) A vetoed bill means it "dies"
17) If 2/3 of each house favors a vetoed bill, it becomes a law without the president's signature
What is Article 1 Section 8?
The first 17 clauses of Article 1 Section 8 describe the powers given to Congress--the enumerated powers (expressed or delegated powers).
What is Article 1, Section 8, Clause 18?
The Elastic Clause/Necessary and Proper Clause/Implied Powers clause:
"necessary and proper"
In the Constitution what is article 2 about?
The executive branch
Who elects the president?
The electoral college
What are the qualifications of being president?
35 years old, citizen of the US, and lived here for 14 years
In the Constitution what is article 3 about?
The judicial branch
In the Constitution what are article 4, 5, 6, and 7 about?
The powers/roles of the states
What is article 6?
Supreme Law of the Land
The Constitution, federal laws, and national treaties are the supreme laws of the land. A state law that is contrary to these is void.
What is article 5?
How the constitution can be amended
What is full faith and credit? In Article 4?
All states must accept the laws, records, and court decisions of other states as legal and binding.
What is Article 4, Section 2, Clause 1?
Privileges and Immunities Clause: A citizen from another state has the same rights as the citizens of the state where he/she happens to be. He or she is not treated as a foreigner within that state.
What is extradition?
People cannot escape justice by moving out of their state. Anyone accused of a crime in one state who escapes to another state is usually returned if the governor of the state where the crime was committed requests it.
In the Constitution what is Article 8?
Ratification. The Constitution needed 9 out of 13 states to ratify it before it would be enacted.
1.) Freedom of religion, speech, press, assembly, petition
2.) Right to bear arms
3.) Right to not have to quarter soldiers
4.) Right to be free from unreasonable searches and seizures
5.) Right to grand jury indictment, no double jeopardy, freedom from self-incrimination, due process of law
6.) Right to be informed of charges, be present when witnesses speak in court, to call defense witnesses, to have a lawyer
7.) Right to a jury trial in civil cases
8.) Freedom from excessive bail and cruel and unusual punishment
9.) Guarantee of rights not listed in Constitution--this means that the government can still only do what the Constitution allows and that there are other rights not listed that people have as well
10.) Rights of states and the people: the states and people have all the powers that have not been delegated to the national government
11.) Citizens of other states or foreign countries cannot sue a state in federal court without its consent
12.) Election of the president
13.) Abolition of Slavery
14.) Right to be free from discrimination in states, to have due process of law, to have equal protection of the law
15.) Voting rights will not be abridged on the matter of race or skin color (black suffrage)
16.) Individual income tax
17.) Election of national senators--direct election, not state legislators
18.) Prohibition of alcoholic beverages
19.) Women's suffrage
20.) Lame-duck period shortened for federal officials
21.) Repeal of Prohibition
22.) Limitation on the presidential term of office
23.) Voters in Washington DC given the right to vote for presidential electors
24.) Abolition of poll taxes
25.) Succession to the office of the President--Speaker of the House before the Secretary of State
26.) 18 years olds can vote
27.) Compensation for members of Congress
Marbury v Madison. Describe the case
Marbury v. Madison (1803)
Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution. Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.
The facts surrounding Marbury were complicated. In the election of 1800, the newly organized Democratic-Republican party of Thomas Jefferson defeated the Federalist party of John Adams, creating an atmosphere of political panic for the lame duck Federalists. In the final days of his presidency, Adams appointed a large number of justices of peace for the District of Columbia whose commissions were approved by the Senate, signed by the president, and affixed with the official seal of the government. These judges were appointed so late in his terms that they were known as "midnight judges" because he had just completed signing all the new appointments in the middle of the night.
The commissions were not delivered, however, and when President Jefferson assumed office March 5, 1801, he ordered James Madison, his Secretary of State, not to deliver them. William Marbury, one of the appointees, then petitioned the Supreme Court for a writ of mandamus, or legal order, compelling Madison to show cause why he should not receive his commission.
In resolving the case, Chief Justice Marshall answered three questions. First, did Marbury have a right to the writ for which he petitioned? Second, did the laws of the United States allow the courts to grant Marbury such a writ? Third, if they did, could the Supreme Court issue such a writ? With regard to the first question, Marshall ruled that Marbury had been properly appointed in accordance with procedures established by law, and that he therefore had a right to the writ. Secondly, because Marbury had a legal right to his commission, the law must afford him a remedy. The Chief Justice went on to say that it was the particular responsibility of the courts to protect the rights of individuals -- even against the president of the United States. At the time, Marshall's thinly disguised lecture to President Jefferson about the rule of law was much more controversial than his statement about judicial review (which doctrine was widely accepted).
It was in answering the third question -- whether a writ of mandamus issuing from the Supreme Court was the proper remedy -- that Marshall addressed the question of judicial review. The Chief Justice ruled that the Court could not grant the writ because Section 13 of the Judiciary Act of 1789, which granted it the right to do so, was unconstitutional insofar as it extended to cases of original jurisdiction. Original jurisdiction -- the power to bring cases directly to the Supreme Court -- was the only jurisdictional matter dealt with by the Constitution itself. According to Article III, it applied only to cases "affecting ambassadors, other public ministers and consuls" and to cases "in which the state shall be party." By extending the Court's original jurisdiction to include cases like Marbury's, Congress had exceeded it authority. And when an act of Congress is in conflict with the Constitution, it is, Marshall said, the obligation of the Court to uphold the Constitution because, by Article VI, it is the "supreme law of the land."
As a result of Marshall's decision Marbury was denied his commission -- which presumably pleased President Jefferson. Jefferson was not pleased with the lecture given him by the Chief Justice, however, nor with Marshall's affirmation of the Court's power to review acts of Congress. For practical strategic reasons, Marshall did not say that the Court was the only interpreter of the Constitution (though he hoped it would be) and he did not say how the Court would enforce its decisions if Congress or the Executive opposed them. But, by his timely assertion of judicial review, the Court began its ascent as an equal branch of government -- an equal in power to the Congress and the president. Throughout its long history, when the Court needed to affirm its legitimacy, it has cited Marshall's opinion in Marbury v. Madison
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