Chapter 2 The Constitutional Framework

PSC 201 American National Government

The Declaration of Independence

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
(http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html )

The Constitution of the United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (http://www.archives.gov/nationalarchivesexperience/charters/constitution.html )

Important history

Declaration of Independence Inspiration for Constitution and D of I

Inspired by John Locke Magna Carta Common law Colonial legislatures

The Articles of Confederation

No executive branch existed. Congress was a unicameral body with the power to:

establish executive departments, declare war, conduct foreign policy ask for revenues, borrow and coin money, and equip and staff a navy each state only had one vote, and all actions required the consent of nine states

No national system of courts existed. Major weaknesses: no power to levy taxes, regulate commerce, or enforce its limited powers.

Drafting the Constitution

Annapolis 1786 Philadelphia 1787

Hot Conspiratorial Civil disobedience Great Compromise 3/5ths Compromise

Major compromises

The Constitutional Framework

The national government.

A government divided between three branches: legislative, executive, and judicial. This created the principles of separation of powers and checks and balances.

Each of the three branches are constitutionally equal and independent of each other while preventing any single branch from becoming too powerful.

Separation of powers is misleading: Although separated, their powers and functions overlap.

Although Congress makes laws, the president submits legislation as well and vetoes bills passed by Congress. Congress responds to the executive process through the creation of federal agencies and advises on and consents to executive appointments. Congress also appropriates money to run the federal government and may delve deeply into the operations of executive agencies.

The Constitutional Framework - Evolving

Through judicial review, the courts decide whether laws passed are constitutional. The notion of three separate-but-equal branches has eroded in the 20th century.

Power has been concentrated in the hands of the president. Congress's power to declare war has diminished since World War II. Congressional frustration over the president's ability to wage war without congressional approval led to the passage of the War Powers Resolution in 1973.

The men who wrote it

The

men who wrote the Constitution and the Declaration of Independence have everything to lose by doing so.
True? False?

The Constitution: A Document "Intended To Endure . . . "

It is an evolving document, meant to last throughout the ages according to Justice Marshall in McCulloch v. Maryland. The principle of flexible construction means that the Constitution must be interpreted to meet changing conditions. A Living Constitution!

What it Says

The legislative branch:

Article I vests all legislative powers in a Congress. Qualifications and methods of electing House and Senate members. Authorizes the House to impeach the president and the Senate to try the case. Empowers the vice president to preside over the Senate. Provides that all tax legislation must originate in the House. Says that the president may sign or veto legislation, and both houses of Congress override.

What it Says

Lists the powers of Congress (Article 1 Section 8). Section 9 also protects citizens' rights to habeas corpus, saying a person is protected from illegal imprisonment. Article 1 Section 9 also forbids Congress from passing bills of attainder (punitive legislation aimed at a specific person), and ex post facto laws (punishing a person for an act that was not a crime when it was committed).

What it Says

Executive branch (Article II) includes:

Executive power is vested in the president. Electoral college, not direct popular vote, elects a president, with the number of electors for each state equal to the state's number of representatives and senators. Electoral college is later modified by the Twelfth Amendment, requiring that electors vote separately for president and vice president. President is commander of armed forces.

What it Says

President makes treaties with the advice and consent of the two-thirds of a quorum of the Senate. President appoints ambassadors, high officials, and judges with Senate advice and consent. President may call Congress into special session.

What it Says

The judiciary (Article III):

Judicial power is vested in a supreme court and other inferior courts that Congress may establish. This article calls for trial by jury. Claim of judicial review stems from "all cases" phrasing in this article and the "supremacy clause" of the Constitution (which is not in this article).

What it Says

Provisions of remaining articles:

Article IV governs relations between the states and the federal government. Article V covers ways to propose and ratify amendments. Article VI includes the "supremacy clause," saying that the Constitution, laws, and treaties of the United States "shall be the supreme Law of the Land." Article VII says the Constitution will be considered ratified when ratified by conventions in nine states.

The Amendment Process

Two methods for proposal were provided for.

Approval by two-thirds of each house of Congress. National convention called by Congress at the request of the legislatures in twothirds of the states. No amendment has ever been proposed by the convention method.

Proposals must be ratified by one of these methods:

Approval by the legislatures in threefourths of the states. Special ratifying conventions in threefourths of the states.

The Bill of Rights

The Bill of Rights (first 10 amendments providing protection from federal power).

The provisions of the first four are:

(First) Freedom of religion, speech, press, assembly, and petition. (Second) The right to bear arms. (Third) Protection against soldiers quartered in homes. (Fourth) Protection from unreasonable search and seizure.

The Fifth provides that no person shall be a witness against himself or stand trial twice for the same crime. The Sixth calls for a speedy trial and a lawyer in criminal cases.

The Bill of Rights

The Seventh provides for a jury trial, even in civil cases. The Eighth bars excessive bail or fines, or cruel and unusual punishment. The Ninth Amendment provides the enumeration of certain rights but shall not deny other rights retained by the people. The Tenth Amendment reserves to the states, or to the people, powers not delegated to the federal government. These ten were designed to protect Americans against the power of the federal government. The Constitution does not require state governments to also abide by the Bill of Rights.

The Later Amendments

The Eleventh Amendment (1795) protects the states from being sued by private citizens or foreigners. The Twelfth Amendment (1804) provided that electors must cast separate ballots for president and vice president. Three amendments resulted from the Civil War:

The Thirteenth (1865) forbids slavery and outlaws involuntary servitude. The Fourteenth (1868) makes former slaves citizens. The Fifteenth (1870) bars federal and state governments from denying people the right to vote.

The Later Amendments

The Sixteenth (1913) allowed Congress to create a tax on individual incomes. The Seventeenth (1913) provides for direct election of senators by voters, rather than by state legislatures. The Eighteenth (1919) established Prohibition by outlawing the manufacturing, transport, and sale of alcoholic beverages. The Nineteenth (1920) guaranteed women the right to vote.

The Later Amendments

The Twentieth (or "lame duck") Amendment (1933) sets the terms of the president and vice president begin on January 20 and the terms of the new Congress on January 3. The Twenty-first (1933) repealed Prohibition and the Eighteenth Amendment. The Twenty-second (1951) limits presidents to two terms plus two years of an unexpired term of a predecessor, for a total of ten years. The Twenty-third (1961) gives citizens of the District of Columbia the right to vote in presidential elections.

The Later Amendments

The Twenty-fourth (1964) abolished the poll tax as a prerequisite for voting in federal primaries and state primaries. The Twenty-fifth (1967) defines the circumstances in which a vice president may take over the leadership of the country in case of presidential disability. The Twenty-sixth (1971) gives persons 18 years old and older the right to vote in all elections. The Twenty-seventh (1992) prohibits Congress from voting itself a pay raise.

The Later Amendments

Other constitutional amendments have been suggested:

The House Republicans proposed an amendment that would balance the federal budget. However, it failed in the Republican-controlled Senate. Congress also failed to pass an amendment to limit the terms of its members to twelve years. The Equal Rights Amendment (ERA) was proposed in 1972 and sent to the states for approval. At the height of its popularity, it got the approval of 35 states-three short of what was required. The approval term was extended by Congress to ten years, but the amendment failed.

The Later Amendments

In 1983 an effort to repropose the ERA failed. Other proposed amendments have been offered to vacate Roe v. Wade, to allow prayer in public schools, and to institute a line item veto for the president. In 1996, Congress legislated a line item veto for the president. This decision, signed by President Clinton, may not pass constitutional muster since it might be seen as violating the Constitution.