Views of the Constitution
-living document
- one of the shortest in the world (4543 words)
- world’s oldest written constitution
Organization
Article I – Legislative Branch and it’s powers
Article II – Executive Branch and it’s powers
Article III – Judiciary Branch and it’s powers
Article IV – Privileges and immunities of citizens and method of admitting states
Article V – methods for amending the Constitution
Article VI – Constitution is the supreme law of the land
Article VII – has to be ratified by 9 of 13 states
1791 Bill of Rights: 1st 10 Amendments added
Natural law – a higher law than human law, defines right from wrong
Constitution becomes a symbol of national loyalty, gained emotional and intellectual
support from Americans.
- 9 of 10 Americans thinks English is the official language
- 1 in 6 believes it establ. Amer. as a Christian nation
- 1 in 4 could name a single 1st Amend. Right
- 2 of 3 knew the Const. had created 3 branches but only 1 in 3 could name 1 of
the branches
Checking Power with Power
Liberty was seen as the most important objective
Federalism: system of shared power between the national and state
governments (chp 3)
- They felt that by placing limits on powers and through free and fair elections
they could check the power of government
- Framers didn’t trust the people’s judgment
- Also feared the a majority might deprive minorities (property owners) of their
rights
Separation of Powers
`
- Federalist 47 (Madison) “the accumulation of all powers,
legislative, executive, and judiciary, in the same hands ….. may
justly be pronounced the very definition of tyranny”
- framers still felt that separation wasn’t enough b/c diff.
officials would pool their authority and act together
Checks and Balances
- Federalist 51 Madison wrote “great security against a gradual
concentration of the several powers in the same department… consists
of giving to those who administer each department the necessary
constitutional means and personal motives to resist encroachments of
the others:… Ambition must be made to counteract ambition.”
- each branch has some authority over the others, but each is
politically independent of the others
Rise of Political Parties & Interest Groups
- Pol. Parties can help bridge the separation of powers by drawing
together the president, senators, representatives, & sometimes even
judges
- can also lead to divided government: partisanship is intensified,
Congress controlled by one party and the oppositional party controls
the White House
- according to some divided government is what the American people
want based on the historical trend of its existence
Expansion of Electorate and Move toward Direct Democ.
- framers feared majority rule
- reason for the creation of the Electoral College: wise
independent citizens who decide the best candidate for
president – precedent over time has led electors to vote for
the candidate that carries the state
- Gore won popular vote in 2000 but Bush won the
electoral college: as a result of Florida’s electoral
“issues”…. Hanging chads
- direct primaries : 17th amendment allows for the direct
election of Senators (ends the Millionaire Boys club)
- recall : allows for the removal of state office holders (some
states)
- initiative: legislation sponsored by electorate
- referendum: voters decide on if laws or amendments pass
Executive Agencies with executive and judicial power
- 1887 Congress established administrative agencies to help regulate
industries and aspects of the economy
-EPA, FCC, ICC
Changes in Technology
- growth of Pres. Power: ability to address American people whenever
he/she wants
Judicial Review
- constitution doesn’t say who has the final word in disputes over its
meaning
-Court not designated to make rulings over federal law/ just state law
-Federalist #78 Hamilton argues for independence of judges to free
them from the influence of the exec and legisl
Marbury v. Madison
- federalists lose power in 1800
- attempt to stack the federal courts with federalists
- Jefferson ordered clerk not deliver the commissions
-Marbury sued Madison based on the Judiciary Act of 1789
: writ of mandamus = directs officials to perform a duty
- Supreme Court heard the case
- John Marshall : (had served in all 3 branches of government. Sec of St.,
Congress, Chief Justice)
- ruling: 1) Marbury would receive his commission b/c Madison should
have delivered it (courts could issue writs of mandamus to high officials)
2) section 13 of Judiciary Act Article III which gives the Supreme Court
original jurisdiction only when an ambassador or foreign minister is
affected
- Marbury was neither therefore the court had no right to issue
a writ of mandamus b/c it isn’t w/in their jurisdiction
- He reasoned that being that the Constitution is Supreme,
courts can’t enforce any action that conflicts with the
Constitution
- This essentially established the Court’s authority to declare
laws passed by Congress Unconstitutional = Null/Void
- This has given the Court the power to act as the authoritative
interpreter of the Constitution
*** Thurgood Marshall primary source***
Constitution as an Instrument of Government
Unwritten Constitution
Judiciary Act of 1789 = national justice system, laws established
/ organizing the functions of all federal executive officials
subordinate to the President
Impeachment
- formal accusation against a public official
- Article I : gives this power to the House of Representatives
- if Impeached the trial is held in the Senate
- Exempts cases of Impeachment from the Presidents
pardoning power
- Article III exempts cases of impeachment from jury trials
Presidential Practices
- executive orders: carry the full force of law
- withholding of federal contract from businesses engaging in
racial discrimination
- executive privilege: right to make executive communications
(natl. security) confidential
The president can invoke executive privilege in order to withhold
some internal executive branch communications from the other
branches of government. The privilege is based on the separation of
powers between the branches.
Executive privilege has been invoked since the U.S.'s early days but
isn't in the Constitution. It was only in 1974, when Richard Nixon
tried to prevent the release of White House tapes during the
Watergate investigation, that the Supreme Court upheld its
constitutionality, and set some parameters for it. The Court ruled
that no claim on executive privilege is absolute, and can also be
overcome if evidence is needed in a criminal trial.
Clinton evoked exec. priv. 14 times during his presidency (much of
it dealt with the Lewinsky scandal)
- impoundment : power to withhold funds previously
appropriated by Congress
- power to send armed forces into hostilities
- authority to propose legislation and to work to secure its
passage in Congress
- office of the president has become pivotal for regulation the
economy and promoting the general welfare (Article I gives this
power to the legislative branch) through an expanded federal
bureaucracy
Custom and Usage
- structures outside the formal Constitution : ex. national political
parties, interest groups, presidential debates
- result: the relationship between the branches today is considerably
different from what the framers envisioned
Judicial Interpretation
- “original intent” (Scalia, Thomas, Bork) contend that judges should
adhere to the intent of the founders and not interpret based on
contemporary views
- interpretation of a written constitution or law should be based on
what reasonable persons living at the time of its adoption
- Some have suggested that Scalia's personal concept of
"originialism" is actually a disguised theocratic agenda, in that he
sees rights as coming from a deity rather than from the text of the
Constitution and the meaning of those words at the time of
ratification or at the time of interpretation (to the extent those
meanings differ). For example, Scalia has said "It's a symbol of the
act that government comes – derives its authority from God."
-“living document” (Brennan, Souter, Breyer)
concept in United States constitutional interpretation which
claims that the Constitution has a dynamic meaning or that it has
the properties of a human in the sense that it changes. The idea is
associated with views that contemporaneous society should be
taken into account when interpreting key constitutional phrases
According to the pragmatist view, the Constitution should be seen
as evolving over time as a matter of social necessity.
conservative/now centrist Judge Richard Posner:
A constitution that did not invalidate so offensive, oppressive,
probably undemocratic, and sectarian law [as the Connecticut law
banning contraceptives] would stand revealed as containing major
gaps. Maybe that is the nature of our, or perhaps any, written
Constitution; but yet, perhaps the courts are authorized to plug at
least the most glaring gaps. Does anyone really believe, in his heart
of hearts, that the Constitution should be interpreted so literally as to
authorize every conceivable law that would not violate a specific
constitutional clause? This would mean that a state could require
everyone to marry, or to have intercourse at least once a month, or
it could take away every couple's second child and place it in a
foster home.... We find it reassuring to think that the courts stand
between us and legislative tyranny even if a particular form of
tyranny was not foreseen and expressly forbidden by framers of the
Constitution.[7]
Justice Brennan
“current justice read the Const. in the only way that we can: as
contemporary Americans. What do the words of the text mean in our
time?”