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Override presidential veto in both Override presidential veto in both houses of Congresshouses of Congress

Senate approval of a treatySenate approval of a treaty Impeachment trial in the SenateImpeachment trial in the Senate Proposal for a Constitutional Proposal for a Constitutional

Amendment in both houses of Amendment in both houses of CongressCongress

Proposal for a Constitutional Proposal for a Constitutional Amendment in national conventionAmendment in national convention

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Where did we begin?

English heritage Magna Carta (1215) Habeas Corpus (1679) English Bill of Rights (1689) Enlightenment – Locke, Hobbes,

Montesquieu, Rousseau Social contract theory dismissed divine rule of kings

5 basic principles (ideas) in the Declaration of

Independence all men created equal endowed with unalienable rights purpose of gov’t = security of

rights just powers of gov’t by consent right to alter or abolish when

gov’t becomes destructive of these ends

Articles of Confederation National government could not levy taxes National government could not levy taxes

from statesfrom states No national armyNo national army No control over trade (domestic of foreign)No control over trade (domestic of foreign) No federal supremacyNo federal supremacy No Supreme CourtNo Supreme Court No ExecutiveNo Executive Amendments required unanimous voteAmendments required unanimous vote Pass national laws – 9/13 votePass national laws – 9/13 vote *1781-1787 (*technically since Second *1781-1787 (*technically since Second

Continental Congress, 1776 -)Continental Congress, 1776 -) Did establish a Post Office; Land Ordinance Did establish a Post Office; Land Ordinance

of 1785, Northwest Ordinance (1787)of 1785, Northwest Ordinance (1787) 4

Constitutional Convention Summer

1787 Virginia Plan (Edmund Randolph and

James Madison) Strong central

government with bicameral legislature

3 branches Representation of one

house based on population

Judiciary with veto power of legislative acts

New Jersey Plan (William Patterson) Plural executive National government

supreme Unicameral

legislature – one vote per state

National government could tax and regulate trade

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US Constitution PreamblePreamble … … ““We the People of the United We the People of the United

States, in Order to form a more perfect UnionStates, in Order to form a more perfect Union……””

7 articles7 articles Article I – Legislative, II – Executive, III – Judicial, IV Article I – Legislative, II – Executive, III – Judicial, IV

– Federalism (Full faith credit, extradition, creation – Federalism (Full faith credit, extradition, creation new states) V – Amendment Process, VI – Supremacy new states) V – Amendment Process, VI – Supremacy Clause, VII – Ratification of the ConstitutionClause, VII – Ratification of the Constitution

27 Amendments27 Amendments (Bill of Rights 1-10, ratified (Bill of Rights 1-10, ratified 1791)1791)

1787 – 1787 – Constitutional ConventionConstitutional Convention ““Supreme Law of the LandSupreme Law of the Land”” (Article VI) (Article VI) Living document – Living document – read and interpreted by read and interpreted by

courts around the world.courts around the world.6

ELEMENTS OF THE CONSTITUTION

Separation of Powers - this established the individual powers of the three branches (Legislative, Executive, and Judicial).

Checks and Balances - this prevents any of the three BRANCHES from gaining too much power (examples?).

Federalism - established the power of the LEVELS of gov’t (Federal vs. State)

REPUBLICANISM – we elect representatives to run the government for us.

Principles of the Principles of the ConstitutionConstitution

Checks and BalancesChecks and Balances Separation of PowersSeparation of Powers FederalismFederalism Republicanism Republicanism Judicial review (inherent power – Judicial review (inherent power – Marbury Marbury

v. Madison)v. Madison) Other liberties included within the articles Other liberties included within the articles

Writ of habeas corpus - Writ of habeas corpus - statement issued by a judge of statement issued by a judge of a charge to a charge to ““hold the bodyhold the body””

No bill of attainder - No bill of attainder - laws that make an individual laws that make an individual guilty of a crime without a trial, were barredguilty of a crime without a trial, were barred

No ex post facto laws - No ex post facto laws - which declared an action a which declared an action a crime after it had been performed, were not permittedcrime after it had been performed, were not permitted8

Figure 2.2: What are the separation of powers and checks and balances

under the U.S. Constitution?

To Learning Objectives

Question:

What are the two formal procedures for amending the Constitution?Proposal?Ratification?

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Amendment process in Article V

Amendments may be proposed by: 2/3 of both houses of Congress, or A convention called for by 2/3 of both

houses of Congress upon application by 2/3 of the state legislatures

Amendments may be ratified by: ¾ of state legislatures or ¾ of conventions in the states 

Congress selects the mode of ratification.

Marbury v. Madison Marbury v. Madison (1803)(1803)

Judicial reviewJudicial review 1st time S.C. declared a Congressional 1st time S.C. declared a Congressional

act -- Judiciary Act of 1789 -- act -- Judiciary Act of 1789 -- unconstitutionalunconstitutional

Chief Justice John Marshall wrote Chief Justice John Marshall wrote decisiondecision

Legitimized the independence and Legitimized the independence and Constitutional role of the Supreme CourtConstitutional role of the Supreme Court

Marbury v. Madison (1803) See p.330 in O’Connor textbook; This is See p.330 in O’Connor textbook; This is

a very important case!a very important case! 12

Federalist Papers

PUBLIUS (Latin for “the people”) Alexander Hamilton, James Madison,

John Jay Federalist Papers (85 articles total) to

support the Constitution and to respond to Antifederalists’ dissent for the ratification

Promoted a strong central government Hamilton (51), Madison (26), John Jay (5), and

Hamilton and Madison co-authored 3 Two of the most famous Federalist Papers… Federalist Nos. 10 and 51 (Madison)

Federalist No. 10’s defense of the large republic:

The problem of faction defined How to deal with faction?

Remove causes - how? Destroy liberty Give same opinions, etc.

Control the effects – how? prevent majority interest from forming, or If formed, make it difficult to unite

Question: democracy or republic? Question: small or large republic? Benefits of large republic:

Diversity of interests and opinions Less opportunity to “concert and oppress” Better reps

Federalist No. 10Federalist No. 10 Publius (James Madison)Factions (passions) and Factions (passions) and

REPUBLICAN form of governmentREPUBLICAN form of government Factions allow us to consider all sides; inevitable Factions allow us to consider all sides; inevitable

differences; but dangerous if not monitored. differences; but dangerous if not monitored. Government is the mediator between factions, none Government is the mediator between factions, none should gain enough power to violate othershould gain enough power to violate other’’s rights in s rights in free governmentfree government

““Faction is thus sown into the nature of man.”Faction is thus sown into the nature of man.” ““liberty is to faction what air is to fire…liberty is to faction what air is to fire…”” ““The regulation of these various and interfering interests The regulation of these various and interfering interests

forms the principal task of modern legislation…forms the principal task of modern legislation…”” George Washington in his Farewell Address warned George Washington in his Farewell Address warned

against factions and political partiesagainst factions and political parties Federalist No. 10

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Federalist No. 51Federalist No. 51 Publius (James Madison) Separation of branches; Checks and Separation of branches; Checks and

balances balances ““The great difficultly lies in this: you The great difficultly lies in this: you

must first enable the government to must first enable the government to control the governed; and in the next control the governed; and in the next place oblige it to control itself.place oblige it to control itself.””

““ambition must be made to counteract ambition must be made to counteract ambitionambition””

““If men were angels, no government If men were angels, no government would be necessary.would be necessary.””

Federalist No. 51 16

Federalist No. 78Federalist No. 78 Publius (Alexander Hamilton) Judicial power implied judicial reviewJudicial power implied judicial review The independence of judges is an The independence of judges is an

essential safeguard against effects of essential safeguard against effects of societysociety

(Judicial Branch) has (Judicial Branch) has ““neither FORCE neither FORCE NOR WILL, but merely judgment…NOR WILL, but merely judgment…””

““right of the courts to pronounce right of the courts to pronounce legislative acts void…legislative acts void…””

““No legislative act, therefore, contrary to No legislative act, therefore, contrary to the constitution, can be valid.the constitution, can be valid.””

Federalist No. 78 17

Hamilton’s defense of Judiciary

It is the least dangerous branch (No. 78) Judiciary should NOT be subordinate to

legislature, because judicial review is necessary (No. 78 & 81)

Defense of “judicial review”: Someone must decide in cases of “clashing laws” Judges may not substitute “will” for “judgment” No power to interpret Constitution “in equity”

(according to “spirit”) Judiciary is NOT the supreme branch: the

Constitution embodies the reason of the people and is therefore supreme over ALL (No. 78)

Delegated &Enumerated Delegated &Enumerated PowersPowers

Delegated powers – granted to one Delegated powers – granted to one of the three branches of the of the three branches of the national government by the national government by the Constitution (usually refers to Constitution (usually refers to powers delegated to President)powers delegated to President)

Enumerated – usually refers to Enumerated – usually refers to Congressional powers Article I, Congressional powers Article I, Section 8Section 8

Expressed – powers derived from Expressed – powers derived from the Constitutionthe Constitution 19

Implied PowersImplied Powers

Authority granted by inference of Authority granted by inference of the Constitutionthe Constitution’’s delegated powerss delegated powers

(I.8.18.) = Article I, section 8, clause (I.8.18.) = Article I, section 8, clause 18 18 ““necessary and proper clausenecessary and proper clause””

McCulloch v. Maryland (1819)(1819) Congress has the enumerated power Congress has the enumerated power

to to ““declare wardeclare war”” whereas the whereas the President has Commander-in-Chief President has Commander-in-Chief power to command armed forces. power to command armed forces.

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McCulloch v. Maryland McCulloch v. Maryland (1819)(1819) Federal supremacy (Article VI) - supremacy Federal supremacy (Article VI) - supremacy

clauseclause Unanimous decisionUnanimous decision Question over the power of Congress to establish Question over the power of Congress to establish

a national bank; national gov’t supremacy; a national bank; national gov’t supremacy; federalismfederalism

Implied power - (I.8.18) Congress may Implied power - (I.8.18) Congress may ““make all make all laws necessary and proper for carrying into laws necessary and proper for carrying into execution …and all other powers vested in…the execution …and all other powers vested in…the govgov’’t of the United States t of the United States ”” or the or the elastic clauseelastic clause

Justice John Marshall expanded the role of the Justice John Marshall expanded the role of the national governmentnational government

““Power to tax is the power to destroyPower to tax is the power to destroy”” McCulloch v. Maryland (1819)

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Inherent PowersInherent Powers

Self-evident powersSelf-evident powers Protection of citizens under the Protection of citizens under the

governmentgovernment Powers which are automatic for a nation-Powers which are automatic for a nation-

state – foreign negotiations, make state – foreign negotiations, make international agreements, acquire international agreements, acquire territory, protection of citizens, etc.territory, protection of citizens, etc.

The US is a sovereign power among The US is a sovereign power among nationsnations

Presidents question their inherent powers Presidents question their inherent powers during times of crisis and emergenciesduring times of crisis and emergencies22

Dual FederalismDual Federalism Layer cake Layer cake limited powers given to the national limited powers given to the national

government (national defense and foreign government (national defense and foreign policy) and the rest left to the sovereign policy) and the rest left to the sovereign statesstates

Each level dominant within its own sphereEach level dominant within its own sphere Tenth AmendmentTenth Amendment Conservative stanceConservative stance Supreme Court is umpireSupreme Court is umpire Supreme Court favored this interpretation Supreme Court favored this interpretation

for the first 100 years of American historyfor the first 100 years of American history Decentralist view (states rights)Decentralist view (states rights)

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Cooperative FederalismCooperative Federalism

Marble cake (Morton Grodzins)Marble cake (Morton Grodzins) Stresses federalism as a system of Stresses federalism as a system of

intergovernmental relations in delivering intergovernmental relations in delivering goods and serves to peoplegoods and serves to people

Calls for all levels of government to work Calls for all levels of government to work togethertogether

Government is involved in a variety of Government is involved in a variety of issues and programsissues and programs

New Deal Programs - FDRNew Deal Programs - FDR Liberal stanceLiberal stance Centralist viewCentralist view 24

Horizontal FederalismHorizontal Federalism State to state relationsState to state relations Full Faith & Credit (IV,1) Full Faith & Credit (IV,1) requires states to requires states to

enforce court judgments of other states (divorce) and enforce court judgments of other states (divorce) and accept public records as valid (marriage licenses, accept public records as valid (marriage licenses, identifications)identifications)

Interstate Privileges and Immunities (IV, Interstate Privileges and Immunities (IV, 2) 2) must extend to citizens of other states - protection must extend to citizens of other states - protection of laws, right to engage in peaceful occupations, of laws, right to engage in peaceful occupations, access to courts and freedom of discriminatory taxes; access to courts and freedom of discriminatory taxes; states may not impose unreasonable residency states may not impose unreasonable residency requirements (such as medical care or voting requirements (such as medical care or voting requirements for new residents) requirements for new residents)

Extradition (IV, 2) Extradition (IV, 2) states must deliver criminals states must deliver criminals back to home stateback to home state

Interstate Compacts (I, 10)Interstate Compacts (I, 10) states must settle states must settle disputes peacefully; all state to state compacts must be disputes peacefully; all state to state compacts must be approved by Congressapproved by Congress 25

GrantsGrants Ways that federal govWays that federal gov’’t disperses $ to state and t disperses $ to state and

local governmentslocal governments ““Grants-in-aidGrants-in-aid””; revenue sharing; revenue sharing CategoricalCategorical -- formula grants, $ for a specific -- formula grants, $ for a specific

purposes, subject to federal supervision (school purposes, subject to federal supervision (school lunches, building of highways and airports)lunches, building of highways and airports)

Project Grants Project Grants -- state, local, and -- state, local, and nongovernmental agencies can apply for $ nongovernmental agencies can apply for $ (universities, employment training programs); (universities, employment training programs); National Science FoundationNational Science Foundation

BlockBlock -- broad grants to states for prescribed -- broad grants to states for prescribed activities with few strings attached (child care, activities with few strings attached (child care, welfare, social services, education and health welfare, social services, education and health care)care)

““Devolution revolutionDevolution revolution”” - the effort to slow the - the effort to slow the growth of the federal government by returning growth of the federal government by returning many functions to the states (welfare) – Welfare many functions to the states (welfare) – Welfare Reform Act 1996Reform Act 1996

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MandatesMandates Federal law for all levels of governmentFederal law for all levels of government New Deal Programs, Great Society New Deal Programs, Great Society

Programs, Clean Air Act were mandates Programs, Clean Air Act were mandates for the nationfor the nation

Unfunded MandatesUnfunded Mandates Americans With Disabilities Act 1990 (ADA)(ADA) Unfunded Mandates Reform Act of 1995 - Unfunded Mandates Reform Act of 1995 -

requires the Congressional Budget Office requires the Congressional Budget Office (CBO) and federal agencies to report the (CBO) and federal agencies to report the impact of unfunded mandates describing the impact of unfunded mandates describing the impact on state and local governmentsimpact on state and local governments

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New Techniques of New Techniques of Federal Control (beyond Federal Control (beyond

mandates)mandates) Direct orders - criminal sanction enforced Direct orders - criminal sanction enforced (Equal Opportunity Employment Act of 1972)(Equal Opportunity Employment Act of 1972)

Cross-Cutting Requirements - federal grants Cross-Cutting Requirements - federal grants may establish conditions (Civil Rights Act 1964)may establish conditions (Civil Rights Act 1964)

Crossover Sanctions - sanctions permit the use Crossover Sanctions - sanctions permit the use of federal $ in programs to influence state/local of federal $ in programs to influence state/local policies (1984 act reduced fed highway $ if policies (1984 act reduced fed highway $ if states didnstates didn’’t increase 21 drinking age)t increase 21 drinking age)

Total and Partial PreemptionTotal and Partial Preemption Partial would be fed imposes basic law/policies and Partial would be fed imposes basic law/policies and

state must administer themstate must administer them Mandatory partial preemption - Clean Air Act 1990 - Mandatory partial preemption - Clean Air Act 1990 -

fed national air quality standard and state must fed national air quality standard and state must devise implementation without fed fundsdevise implementation without fed funds

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I (1I (1stst) Amendment) Amendment Civil Liberties Civil Liberties ““Congress shall make no law respecting an Congress shall make no law respecting an

establishment of establishment of religionreligion, or prohibiting the , or prohibiting the free exercise thereof; or abridging the free exercise thereof; or abridging the freedom of freedom of speechspeech, or the , or the presspress, or the right , or the right of the people to peacefully to of the people to peacefully to assemblassemble, and e, and to to petitionpetition the Government for a redress of the Government for a redress of grievances.grievances.””

Schenck v. United States (1919) speech, (1919) speech, clear and present dangerclear and present danger

Gitlow v. New York (1925) (1925) incorporation of incorporation of First AmendmentFirst Amendment’’s freedoms of speech and press s freedoms of speech and press provisions, citing the Fourteenth Amendmentprovisions, citing the Fourteenth Amendment’’s due s due process clause to apply to state lawprocess clause to apply to state law 29

I (1I (1stst) Amendment) Amendment Establishment Clause: Establishment Clause: ““make no law make no law

respecting the establishment of …respecting the establishment of …”” Lemon v. KurtzmanLemon v. Kurtzman (1971)(1971) ““lemon test or lemon test or

3-prong test3-prong test”” Engel v. VitaleEngel v. Vitale (1962) (1962) no state-sponsored no state-sponsored

prayer in public schoolprayer in public school Free exercise clause Free exercise clause ““or prohibiting the or prohibiting the

free exercise of…free exercise of…”” Reynolds v. United States Reynolds v. United States ( 1878) – polygamy is ( 1878) – polygamy is

illegal and is not protected under 1illegal and is not protected under 1stst Amendment Amendment Oregon v. Smith Oregon v. Smith (1990) – unlawful drug use is (1990) – unlawful drug use is

illegal in religious ceremonies and is not illegal in religious ceremonies and is not protected under 1protected under 1stst Amendment Amendment

Bill of Rights Institute Religious Bill of Rights Institute Religious LibertyLiberty

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XIV (14XIV (14thth) Amendment - ) Amendment - 18681868 Defined citizenshipDefined citizenship

Clauses:Clauses: privilege and and privilege and and immunities, immunities, Due processDue process, equal , equal protection protection

Incorporation Incorporation Application of due process clause to the Application of due process clause to the

State law – State law – ““nor shall any State deprive nor shall any State deprive any person of life, liberty, or property, any person of life, liberty, or property, without the due process of the lawwithout the due process of the law””

Gitlow v. New York (1925) Gitlow v. New York (1925) 5 sections: also includes congressional 5 sections: also includes congressional

representation/districting; Southern rebels representation/districting; Southern rebels denied federal office, rebel debts repudiateddenied federal office, rebel debts repudiated

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Incorporation DoctrineIncorporation Doctrine

The legal concept under which the The legal concept under which the Supreme Court (and federal courts) Supreme Court (and federal courts) has has ““nationalizednationalized”” the Bill of Rights by the Bill of Rights by making most of its provisions making most of its provisions applicable to the states through the applicable to the states through the Fourteenth Amendment.Fourteenth Amendment.

The following amendments have not The following amendments have not been incorporated: III, VII, X (Grand been incorporated: III, VII, X (Grand Jury)Jury)

*See my website for a AP College *See my website for a AP College Board PDF article of this topic Board PDF article of this topic

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Selective IncorporationSelective Incorporation Selective Incorporation – the Supreme Selective Incorporation – the Supreme

Court (or federal courts) decide on a case-Court (or federal courts) decide on a case-by-case basis, when to apply the Bill of by-case basis, when to apply the Bill of Rights to state law from the due process Rights to state law from the due process or equal protection clauses in the or equal protection clauses in the Fourteenth Amendment.Fourteenth Amendment.

Palko v. Connecticut Palko v. Connecticut (1937) – first (1937) – first rejection by S.C. of rejection by S.C. of ““totaltotal”” incorporation; incorporation; ruled that the Fifth Amendment double ruled that the Fifth Amendment double jeopardy provision does not apply to the jeopardy provision does not apply to the states through the Fourteenth states through the Fourteenth Amendment. Amendment. (overturned by (overturned by Benton v. MarylandBenton v. Maryland, , 1969 – incorporated double jeopardy)1969 – incorporated double jeopardy) 33

IV (Fourth) AmendmentIV (Fourth) Amendment

Search and seizuresSearch and seizures Wolf v. Colorado Wolf v. Colorado (1949) (1949)

(incorporation case, 4(incorporation case, 4thth and 14 and 14thth Amendments)Amendments)

Mapp v. Ohio Mapp v. Ohio (1961) - (1961) - (incorporation case, 4(incorporation case, 4thth and 14 and 14thth Amendment)Amendment) Exclusionary ruleExclusionary rule

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Due ProcessDue Process

5th and 14th Amendments5th and 14th Amendments Protection against deprivation of Protection against deprivation of

life, liberty, or propertylife, liberty, or property Rights of the accusedRights of the accused Origin from the Magna Carta Origin from the Magna Carta

(1215)(1215)

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V (Fifth) AmendmentV (Fifth) Amendment

Due processDue process Eminent domain (govEminent domain (gov’’t will pay $ for t will pay $ for

private property)private property) Self-incriminationSelf-incrimination Double jeopardyDouble jeopardy Capital crime – Grand Jury (except Capital crime – Grand Jury (except

Military and emergencies)Military and emergencies)

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VI (Sixth) AmendmentVI (Sixth) Amendment

Fair and speedy trial; right to Fair and speedy trial; right to counselcounsel

Miranda v. Arizona Miranda v. Arizona (1966)(1966) rights of rights of the accused, Fifth amendment, right the accused, Fifth amendment, right to counsel, self-incriminationto counsel, self-incrimination

Gideon v. Wainwright Gideon v. Wainwright (1963)(1963) counsel must be provided in felony counsel must be provided in felony cases (incorporation case – due cases (incorporation case – due process in 6process in 6thth and 14 and 14thth Amendments) Amendments)

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Suffrage AmendmentsSuffrage Amendments

XV (15) – (1870) African American XV (15) – (1870) African American malesmales

XVII (17) – (1913) XVII (17) – (1913) direct elections for US direct elections for US SenatorsSenators

XIX (19) – (1920) Women SuffrageXIX (19) – (1920) Women Suffrage XXIII (23) - (1961) District of Columbia XXIII (23) - (1961) District of Columbia

residents vote for presidentresidents vote for president XXIV (24) - (1964) prohibit poll taxes XXIV (24) - (1964) prohibit poll taxes XXVI (26) – (1971) 18 year old voteXXVI (26) – (1971) 18 year old vote

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Article IArticle I

Legislative Branch (Congress)Legislative Branch (Congress) House and SenateHouse and Senate Very detailed powers - enumerated (I.8) Very detailed powers - enumerated (I.8) impeachmentimpeachment Gives Congress the most powerGives Congress the most power ““Necessary-and-properNecessary-and-proper”” clause clause Habeas corpus, no bill of attainder, or ex Habeas corpus, no bill of attainder, or ex

post facto lawspost facto laws Interstate commerce clauseInterstate commerce clause CensusCensus

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