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The Constitution and the
Federalist Papers
“The Constitution does not grant rights, it recognizes them.”
—Jason Laumark
Why the Articles of
Confederation Failed
The Articles did not give the national government coercive power over the states (e.g., the power to tax).
The Articles had no chief executive and no court system.
The Articles did not allow the national government to regulate interstate and foreign commerce.
The Articles did not provide centralized control over foreign relations.
Most laws required 9/13 votes to pass.
The Articles could not be amended without unanimous consent.
A house divided against itself cannot stand.
Federalists and Anti-Federalists are engaged in a
tug-of-war
The state of Connecticut is represented by a wagon. The driver warns: “Gentlemen this Machine is deep in the mire and you are divided as to its releaf…”
Shays’s Rebellion, 1786
“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical… It is a medicine necessary for the sound health of government.”
—Thomas Jefferson
Why did the Articles of Confederation create such a weak national government?
Shays’s Rebellion
WEAK STRONG
King George III
…it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several States be held in Philadelphia for the sole and express purpose of revising the Articles of Confederation….
In Madison’s “republican remedy,” government is divided time and time again in order to control the influence of faction by preventing a dangerous concentration of power.
BRANCH OF GOVERNMENT
Legislative Executive Judicial
House Senate
LE
VE
L O
F G
OV
ER
NM
EN
T Federal
State
Local
POWER
FACTION
Majority
Minority
A system governed by majority rule means that minority factions will be outvoted
“Extend the sphere” to increase the diversity of interests competing for power and attention
A system of representation filters out selfish interests
Separation of powers prevents a concentration of power
Checks and balances allow “ambition to counteract ambition”
Madison’s “Republican Remedy”
Madison was not terribly worried about minority factions… Should he have been?
Factions Today
Majority?
Minority?
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of citizens, or to the permanent and aggregate interests of the community.”
—James Madison, Federalist No. 10
Guiding
Principles
Social contract theory
Separation of powers
Checks and balances
Federalism
“The United States Constitution has proven itself the most marvelously elastic compilation of rules of government ever written.” —Franklin D. Roosevelt
Understanding the Constitution
Which branch of government did the Framers fear most?
Is this a democratic document? Has it become more democratic over time than the Framers intended?
How should we interpret the Constitution? In a loose way or a strict way?
Should we venerate the Constitution? How powerful is it as a written document?
Section 1.
All legislative Powers herein granted shall be vested in
a Congress of the United States, which shall consist of
a Senate and House of Representatives...
ARTICLE 1
Section 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and general Welfare of the United States;
but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes...
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures...
To constitute Tribunals inferior to the supreme Court...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures
on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer
Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions...;--And
To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof...
ARTICLE 1
ARTICLE II
Section 1.
The executive Power shall be vested in a President of
the United States of America. He shall hold his Office
during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected,
as follows:
Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and
Representatives to which the State may be entitled in
the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector...
ARTICLE III
Section 1
The judicial Power of the United States shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain
and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their
Services a Compensation, which shall not be
diminished during their Continuance in Office...
Understanding the Constitution
Which branch of government did the Framers fear most?
Is this a democratic document? Has it become more democratic over time than the Framers intended?
How should we interpret the Constitution? In a loose way or a strict way?
Should we venerate the Constitution? How powerful is it as a written document?
VOTERS
PRESIDENT
Four year terms
JUDICIARY
Lifetime terms
SENATE
Six-year terms
HOUSE OF
REPRESENTATIVES
Two-year terms
Electoral
College
State
Legislatures
confirms
nominates
Is this a democratic document?
Understanding the Constitution
Which branch of government did the Framers fear most?
Is this a democratic document? Has it become more democratic over time than the Framers intended?
How should we interpret the Constitution? In a loose way or a strict way?
Should we venerate the Constitution? How powerful is it as a written document?
Things Not in the Constitution
Political parties
The president’s cabinet
Executive privilege
The right to privacy
The word “slavery”
Judicial review
The right to vote
Separation of church and state
“There are those who find legitimacy in fidelity to what they call ‘the intentions of the Framers.’ In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them… But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific contemporary questions… We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening years of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
—Justice William J. Brennan, Jr. (1906-1997)
"…[A] major check on judicial power, perhaps the major check, is the judges’ own understanding of the proper limits to that power… Once adherence to the original understanding [of the Constitution] is weakened or abandoned, a judge… can reach any result… As we have seen, no set of propositions is too preposterous to be espoused by a judge or a law professor who has cast loose from the historical Constitution.“
— Judge Robert H. Bork
I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.
—John Roberts
Judicial Activism vs. Judicial Restraint
When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client. The judge’s only obligation — and it’s a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.
—Samuel Alito
If the concept of “original intent” were
applied today, what would the result be?
Affirmative action
Abortion
Capital punishment
Gun control
School prayer
Campaign finance
Health care
Is the debate of judicial activism vs.
judicial restraint purely political?
Clinton impeachment
Bush v. Gore (2000)
Health care
The Impeachment
of President Clinton
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (The U.S. Constitution, Article II, Section 4) .
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself (Federalist #65).
Bush v. Gore (2000)
Jeffrey Toobin, writing for The New Yorker, says that Bush v. Gore was no novelty, despite the Court famously declaring it was a single-use decision. "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preeminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles.”
The Affordable Care Act The Commerce Clause describes an enumerated power listed
in Article I, Section 8 of the U.S. Constitution. It states that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Understanding the Constitution
Which branch of government did the Framers fear most?
Is this a democratic document? Has it become more democratic over time than the Framers intended?
How should we interpret the Constitution? In a loose way or a strict way?
Should we venerate the Constitution? How powerful is it as a written document?
Should we venerate the Constitution?
Sanford Levinson
“We must recognize that substantial responsibility for the defects of our polity lies in the Constitutional itself.”
Insufficiently democratic
Significantly dysfunctional
The Constitution
Even if you support having a Senate in addition to a House of Representatives, do you
support as well giving Wyoming the same number of votes as California, which has
roughly 70 times the population?
Are you comfortable with an Electoral College that, among other things, has since World War II placed in the White House five candidates—Truman, Kennedy, Nixon (1968), Clinton (1992
and 1996), and Bush (2000)—who did not receive a majority of the popular vote?
Are you concerned that the president might have too much power, whether to spy on
Americans without Congressional or judicial authorization or to frustrate the will of the majority of both houses of Congress by
vetoing legislation with which he disagrees on political, as opposed to constitutional,
grounds?
Do you really want justices on the Supreme Court to serve up to four decades and, among
other things, to be able to time their resignations to mesh with their own political
preferences as to their successors?
Should we venerate the Constitution?
“What effect does it [the Constitution] have on the quality of our lives? And the answer to that, it seems to me, is, Very little. The Constitution makes promises it cannot keep, and therefore deludes us into complacency about the rights we have. It is conspicuously silent on certain other rights that all human beings deserve. And it pretends to set limits on government powers, when in fact those limits are easily ignored.”
Racial equality
Free speech
Economic justice
Gender equality
War powers
Howard Zinn
What is federalism?
Federalism is a form of government in which power is divided between national and state government. Each has its own independent authority and its own duties.
Why Federalism?
Federalism checks the growth of tyranny
Federalism allows unity without uniformity
Federalism encourages experimentation
Federalism provides training grounds
Federalism keeps government closer to the people
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---missouri
http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---kansas--again-
States: Meth Labs of Democracy!
The Federal Division of Powers GRANTED POWERS RESERVED POWERS CONCURRENT POWERS
Examples include:
Regulate interstate and national trade
Coin money
Declare war
Maintain armed forces
Establish a postal system
Enforce copyrights
Sign treaties
Examples include:
Establish local governments
Conduct elections
Establish schools
Police powers (e.g., the inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security)
Examples include:
Taxation of citizens and businesses
Borrow and spend money
Establish courts
Pass and enforce laws
Protect civil rights
These are powers federal and state governments have in common; they are not shared powers.
Education Reform
Should the federal government attempt to equalize school expenditures across states (similar to Vermont’s own Act 60)?
Inequality in Public School
Expenditures
STATE RANK
AVERAGE EXPENDITURE PER
PUPIL PER YEAR
New Jersey 1 $9,774
New York 2 $9,623
Alaska 3 $8,963
Connecticut 4 $8,817
Rhode Island 5 $7,469
Massachusetts 6 $7,287
Maryland 7 $7,245
Pennsylvania 8 $7,109
Delaware 9 $7,030
Michigan 10 $6,994
STATE RANK
AVERAGE EXPENDITURE PER
PUPIL PER YEAR
Wisconsin 11 $6,930
Vermont 12 $6,750
Oregon 13 $6,436
Maine 14 $6,428
Ohio 15 $6,162
Wyoming 16 $6,160
Illinois 17 $6,136
West Virginia 18 $6,107
Hawaii 19 $6,078
Minnesota 20 $6,000
Inequality in Public School
Expenditures
STATE RANK
AVERAGE EXPENDITURE PER
PUPIL PER YEAR
Nebraska 21 $5,935
Washington 22 $5,906
New Hampshire 23 $5,859
Indiana 24 $5,826
Kansas 25 $5,817
Florida 26 $5,718
Montana 27 $5,692
Iowa 28 $5,483
Colorado 29 $5,443
Missouri 30 $5,383
Inequality in Public School
Expenditures
STATE RANK
AVERAGE EXPENDITURE PER
PUPIL PER YEAR
Virginia 31 $5,327
Texas 32 $5,222
Kentucky 33 $5,217
Georgia 34 $5,193
Nevada 35 $5,160
North Carolina 36 $5,077
California 37 $4,992
Oklahoma 38 $4,845
South Carolina 39 $4,797
Arizona 40 $4,778
Inequality in Public School
Expenditures
STATE RANK
AVERAGE EXPENDITURE PER
PUPIL PER YEAR
South Dakota 41 $4,775
North Dakota 42 $4,775
Louisiana 43 $4,761
New Mexico 44 $4,586
Arkansas 45 $4,459
Alabama 46 $4,405
Tennessee 47 $4,388
Idaho 48 $4,210
Mississippi 49 $4,080
Utah 50 $3,656
Inequality in Public School
Expenditures
STATE RANK
AVERAGE COMBINED SCORE
ON SAT
North Dakota 1 1107
Iowa 2 1099
Minnesota 3 1085
Utah 4 1076
Wisconsin 5 1073
South Dakota 6 1068
Kansas 7 1060
Nebraska 8 1050
Illinois 9 1048
Missouri 10 1045
Average SAT Scores by State
STATE RANK
AVERAGE COMBINED SCORE
ON SAT
Tennessee 11 1040
Mississippi 12 1036
Michigan 13 1033
Alabama 14 1029
Oklahoma 15 1027
Louisiana 16 1021
New Mexico 17 1015
Montana 18 1009
Arkansas 19 1005
Wyoming 20 1001
Average SAT Scores by State
STATE RANK
AVERAGE COMBINED SCORE
ON SAT
Kentucky 21 999
Colorado 22 980
Idaho 23 979
Ohio 24 975
Oregon 25 947
Arizona 26 944
Washington 27 937
New Hampshire 28 935
Alaska 29 934
West Virginia 30 932
Average SAT Scores by State
STATE RANK
AVERAGE COMBINED SCORE
ON SAT
Nevada 31 917
Maryland 32 909
Connecticut 33 908
Massachusetts 34 907
California 35 902
Vermont 36 901
New Jersey 37 898
Delaware 38 897
Maine 39 896
Virginia 40 896
Average SAT Scores by State
STATE RANK
AVERAGE COMBINED SCORE
ON SAT
Texas 41 893
New York 42 892
Florida 43 889
Hawaii 44 889
Rhode Island 45 888
Indiana 46 882
Pennsylvania 47 880
North Carolina 48 865
Georgia 49 854
South Carolina 50 844
Average SAT Scores by State
STATE RANK
IN SAT RANK IN
SPENDING
North Dakota 1 42
Iowa 2 28
Minnesota 3 20
Utah 4 50
Wisconsin 5 11
South Dakota 6 41
Kansas 7 25
Nebraska 8 21
Illinois 9 17
Missouri 10 30
STATE RANK IN
SPENDING RANK
IN SAT
New Jersey 1 37
New York 2 42
Alaska 3 29
Connecticut 4 33
Rhode Island 5 45
Massachusetts 6 34
Maryland 7 32
Pennsylvania 8 47
Delaware 9 38
Michigan 10 13
Note that the highest spending states are NOT the highest achieving states. Why? Does this mean that money doesn’t matter?
Reforming Emergency Response
Should we federalize emergency response to terrorist attacks or national disasters, such as Hurricane Katrina?
Hurricane Katrina Key Players
FEDERAL LEVEL • George W. Bush, president (R) • Michael Chertoff, Secretary of the Dept. of Homeland Security • Michael Brown, Director of FEMA
STATE LEVEL • Kathleen Babineaux Blanco, governor of Louisiana (D) LOCAL LEVEL • Ray Nagin, mayor of New Orleans (D)
But… who is in charge?
What do families need to
cope with crises?
Housing assistance (HUD, FEMA)
Income replacement (UI, DUA)
Health care (Medicaid)
Cash assistance (TANF)
These programs are shared federal-state programs
These are federally funded, but administered locally