Constitutional Foundations

The Constitution of the United States

Our Social Contract Written in 1787 – Ratified in 1789

The oldest in the world 2/3 of the national constitutions have been written since 1970

Only 14 predate WWII On average, each nation has had two since 1945

Historical Influences

Social Contract Theory The Magna Carta

Established “rule of law” rather than “rule by whim”

Fun Fact: 1 of 8 original copies is in the National Archives –

It’s 800 years old!!!

Mayflower Compact

The Pilgrims, landing in an area other than that authorized by their charter (contract with the King) agree to govern themselves by electing “representatives.”

The first “republic” in North America

Historical Influences cont.

The Articles of Confederation In groups, answer these questions.

What were the main weakness of the Articles?

List 5 specific weaknesses Why did the leaders of the new nation want it this way?

Why did they decide to change it?

The Articles of Confederation

Our First Constitution Created a “loose league of friendship” between the Colonies

Memories of British Rule made them reluctant to give up local control to a national government

So they created a weak national government . . . on purpose

Problems with the Articles of Confederation Main problem - A weak central government

The weakness was intentional

The states feared a strong central government would diminish their power.

It worked as long as there was a common crisis.

After the war the states began to quarrel with each other.

Problems Among the States They signed individual treaties with other countries, and Indian tribes.

Disputes about boundaries.

Each state had its own currency.

They taxed each other's goods.

They couldn't pay their war debt.

The final straw 1786 - Shay's Rebellion.

Massachusetts farmers, upset by high taxes levied to pay war debts, rebel.

Capture the state arsenal in Springfield, seizing 15,000 weapons.

The state militia stops the rebellion. Few are hurt. But, it scared the national leaders, and convinced them that something had to be done. They called for a convention to meet in Philadelphia - The Constitutional Convention.

Video – A Nation in Crisis

13:30 19:00

II. Constitutional Organization Preamble Main Body

Seven Articles Article One – the Legislative Branch

Article Two – the Executive Branch

Article Three – The Judicial Branch

Pair up and define these terms

Limited Government Separation of Powers Popular Sovereignty Checks and Balances Federalism

Democratic Principles

Principle – an essential element or quality. These “elements” are the building blocks of our Constitution.

Democratic Principles

1. Equality – equal treatment by government

2. Majority rules, but must respect the rights of minorities. (rights can never be taken away)

3. Necessity of compromise - The Civil War is proof of this

4. Limited Government

The Constitution says what our government CAN and CANNOT do.

The “rule of law” rather than “rule by whim”.

5. Separation of Powers

Montesquieu “Divide and conquer”, or divide powers to limit powers.

6. Popular Sovereignty

Consent of the Governed

Power of the people!

The power to govern comes from US!

7. Checks and Balances

Each branch has controls over the others.

8. FEDERALISM

The division of power between the national (or federal government) and the states.

Amendments

Both the national government, and the states must approve any constitutional amendment.

There are 27 Amendments to the Constitution.

Amendment Process

Two Ways to propose: 1. By Congress – with 2/3 vote in each house of Congress. (All 27 were proposed this way.)

2. By national convention – called by Congress when 2/3 of the states request one.

Two Ways to Ratify (approve): By legislatures in ¾ of the states. By Conventions in ¾ of the states. (Only the 21st has been ratified this way.)

III. Federalism A form of government in which power is divided between the federal, or national, government and the states.

A. Powers of the National, or Federal Government

1. Delegated Powers (or Enumerated Powers)

The Federal Government has ONLY those powers GIVEN to it by the Constitution. There are two types of delegated powers: expressed, and implied.

2. Expressed Powers

These are explicitly written down – you can look them up. (Article 1, Section 8)

Examples To declare war To levy taxes To regulate commerce

3. Implied powers

From the “necessary and proper” clause – Article 1, Section 8, Clause 18

The Framers knew they couldn’t include every necessary power, so they included this “blanket” clause

These powers are also known as: Necessary and proper powers Elastics powers

4. Denied Powers

The Constitution also says what government CANNOT do

Government restrictions come from: Explicit (written down) constitutional restrictions (Article 1, section 9)

The silence of the constitution – if the constitution doesn’t say they can do it, they can’t do it.

5. Exclusive Powers

These are things ONLY the Federal Government can do

Examples Wage war Make treaties Coin money Regulate Commerce

B. Powers of the States

Reserved Powers The 10th Amendment

Powers of the states

1. Denied Powers

Constitutional Restrictions Article 1, Section 10

State Constitutions The Supremacy Clause

Federal law is supreme

2. Concurrent Powers

Powers both the federal and state governments have Examples

Levy taxes Establish courts Charter banks Punish lawbreakers

3. Federal Obligations (guarantees) to the States A republican form of government

Cannot change a state’s borders (Carter Lake, Iowa)

Defense and security

4. Interstate Relations

Full faith and credit All states must accept the legal documents, and judicial decisions of all other states

Examples – drivers licenses, marriage licenses, divorce decrees

Example: Defense of Marriage Act

In the 2000 election, Nebraska voters adopted Amendment 416 which defined marriage as a “union of one man, and one woman” and said . . .

The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska."

Would this violate the “full faith and credit clause?”

Couple A moves to Nebraska from Vermont, where they entered into a marriage/civil union. They are now denied health benefits, beneficiary status, and other legal rights associated with married couples.

How could they challenge this?

5. Extradition

Any fugitive from justice shall be returned to the accusing state.

The governor can refuse under some circumstances.

Answer 3 of 4. Do the 4th for extra credit.

1. Explain how school prayer rulings reflect the constitutional principle of “majority rule, and minority rights.”

2. Explain why the Articles of Confederation failed – 5 reasons or problems.

3. Describe four main points of social contract theory.

4. Explain why the framers included the “necessary and proper clause,” and explain the effect that it has had on the federal government.