Unit I: Constitutional Underpinnings of U.S. Government

Chapters 1-3

Unit I: Constitutional Underpinnings of U.S. Government

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to

abuse.” - James Madison

Chapter 1: The Study of American

Government

1. Who governs? ~How is political power actually

distributed in America?2. To what ends?

~What values matter most in American democracy? ~Are trade-offs among political values inevitable?

Key Questions

Politics and GovernmentPolitics: the art or science concerned with winning and holding control

over a government “Who gets what when and how.” Laswell

Government: institution in which decisions are made that resolve conflicts or allocate benefits and privileges

To Maintain Order:Maintaining peace and security by protecting members of society from violence and criminal activity is the oldest purpose of government.

To Preserve Liberty:The greatest freedom of individuals that is consistent with the freedom of other individuals in the society; can be promoted by government.

Why is government necessary?

• Definition- the ability of one person to get another person to act in accordance with the first person’s intentions. (Ex.)

• Increasing extension of power into everyday “private” issues (Ex.)

~FDA~New Deal

~Patriot Act

What is political power?

Authority is the right to use power ~Formal authority refers to the notion that the right to exercise power is vested in government office.

Legitimacy is political authority conferred by law or state/national constitution.

~In the United States political authority is perceived as legitimate if it conferred by the Constitution. ~Our history has been molded by a struggle over what constitutes legitimate authority.

Authority and Legitimacy

Forms of GovernmentForms of Government Totalitarian Regime

Government controls all aspects of the political and social life of a nation.

Authoritarian A type of regime in which only the government itself is fully controlled by the ruler. Social and economic institutions exist that are not under the government’s control.

Aristocracy Rule by the “best”; in reality, rule by an upper class.

Democracy A system of government in which political authority is vested in the people. Derived from the Greek words demos (“the people”) and kratos (“authority”).

1. Direct or Participatory Democracy (Aristotelian “rule of the many”) A government in which all or most citizens participate

directly. Fourth century B.C. Greek city-state (polis), most notably the

Athenian Assembly, practiced direct democracy. Characterized by political equality, citizen participation,

the rule of law, and free and open debate. Limitations were scale and exclusivity (free adult male

property owners) New England town meeting most closely approximates the

Aristotelian ideal Most have abandoned the town meeting style of government

because of size and complexity. They have replaced it with representative government.

Examples of direct democracy in America today: Initiative, Referendum, Recall

Types of Democracy

2. Representative Democracy or Elitist Democracy A government in which leaders make decisions by

winning a competitive struggle for the popular vote (economist Joseph Schumpter)

Justified for two reasons: impractical for people to decide public policy and dangerous to allow people to make decisions on critical issues.

The framers use the phrase “republican form of government” to mean representative democracy. For this system of government to work there must be competition for leadership.

~Individuals and parties can run for office~Communication is free~Voters perceive that there is a meaningful choice

Types of Democracy (continued)

1. The Framers of the Constitution favored representative democracy because: The will of the people was not

synonymous with the “common interest” or “public good”.

The masses lacked knowledge and were susceptible to manipulation.

It minimized the abuse of power by a popular majority or officeholders.

2. Were the framers right?

Is Representative Democracy Best?

1. Majoritarian Politics• Elected officials are the delegates of the

majority of the people and act in accordance to their will.

• Applies when issues are simple and clear

2. Elitism• Rule by identifiable group of persons who

possess a disproportionate share of political power.

• Occurs when circumstances do not permit majoritarian decision making.

How is political power distributed?

1. Marxism• Founded by Karl Marx in The Communist Manifesto(1848)• Government is controlled by the dominant social class

2. Power Elite• Founded by C. Wright Wills in The Power Elite (1956) • Power elite (corporate, military, political leaders…others?)

control and are served by the government 3. Bureaucratic

• Founded by Max Weber in Economy and Society(1922)• Power is in the hands of appointed officials who are able to

exercise power when deciding how public laws are turned into action

4. Pluralist• Bernard Berelson, Paul Lazarsfeld and William McPhee in

Voting (1954)• Competition among all affected interests shapes public

policy. System is to complex to be controlled by one group within or outside of government.

Theories of Political Decision Making

John Locke and Thomas Hobbes (Social Contract Theory)

Humans are reasonable creatures who can use reason t to improve their own social existenceHumans are self-interested Political society exists to allow for prosperity

Alexis de ToquevilleAmericans often act spontaneously and on behalf of the disinterested.Honor principle

Is democracy driven by self-interest ? Individual vs. Common Good

“America is great because she is good. If America ceases to be good, America will cease

to be great.”~ Alexis de Toqueville

Locke’s Key Principles

 “The state of nature has a law of nature to govern it, which treats everyone equally…Being equal and independent, no

one ought to harm another in his life, health, or possessions.” -John Locke

 “The old traditions are apt to lead men into mistakes, as this idea of fatherly power’s probably has done, which seems so eager to place

the power of parents over their children wholly in the father, as if the mother has no share in it. Whereas if we consult reason or the Bible,

we shall find she has an equal title.” -John Locke

“Whensoever the government shall put into the hands of any other an absolute power over the lives, liberty, and estates of the people, by this breach of trust they forfeit

the power of the people…who have a right to resume their original liberty, and by the establishment of the new government provide for their own safety and security.” -

John Locke

Chapter 2 The Constitution

1. Who governs?~What is the difference between a

democracy and a republic?~What branch of government has the

greatest power?

2. To what ends?~Does the Constitution tell us what goals the government should serve?~Whose freedom does the Constitution protect?

Key Questions

Colonists were focused on individual liberty• The right to bring legal cases before independent

judges• The right to not have troops in their homes• The right to trade without restrictions• The right to pay no tax that was levied without

direct representation The colonial mind

• Believed men sought power because they are ambitious, greedy and easily corrupted

• Believed in a higher law that embodied natural rights (life, liberty and property)

• Declaration of Independence was designed to inform George III of ways that their unalienable rights were being violated. The list of 27 grievances was aimed at protecting the colonists rights as British citizens.

The Problems of Liberty

The “Real” Revolution • The real revolution was the “radical change in the

principles, opinions, sentiments, and affections of the people” (John Adams) as it relates to legitimate authority and liberty.

• Government exists by the consent of the governed, not by the will of a king

• Political power can only be granted by a written constitution

• Human liberty exists prior to government and government must respect liberty

• Legislative branch would be superior to the executive branch because it directly represents the people.

Problems (continued)

Problems (continued)Problems(continued)

Weaknesses of the Articles of Confederation

1. Could not levy taxes or regulate commerce

2. Sovereignty retained by the states3. One vote in Congress for each state4. 9/13 states required for any measure

in Congress5. Army was small and dependent on

state militias6. Territorial disputes between states led

to hostility7. No national judicial system8. All 13 states needed for any

amendments

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the

spirit of resistance? What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is the

natural manure.“ -- Thomas Jefferson in response to the rebellion

Shay's Rebellion

Delegates- 74 appointed, 55 attended

Purpose- Revise the Articles of Confederation

Absent-Thomas Jefferson, John Adams and Patrick Henry

Convention president- George Washington

Critical question- How could the government be strong enough to preserve order but not threaten liberty?

The Constitutional ConventionMay 25 – September 17, 1787

Philadelphia, PA

Key ChallengesPlan Key PointsThe Virginia PlanJames Madison

1. Strong national government organized into three branches2. Bicameral legislature (one by the people, one by the other

house)3. Executive (1 term) and judiciary (life) chosen by the legislature4. National legislature had supreme power

The New Jersey PlanWilliam Paterson

1. Created for fear that legislative representation would be based on population , allowing more populated states more power

2. Amend, not replace the Articles of Confederation3. Proposed one vote per state, so that Congress would be

responsible to states. Congress could raise revenue and regulate commerce; acts of the Congress would be binding to the states

4. Protected small states’ interests while expanding the role of the national government

The Great Compromiseor the Connecticut CompromiseOliver Ellsworth

1. House of Representatives based on population and elected directly by the people (65 members)

2. Senate composed of two members from each state and elected by state legislatures

3. Legislation had to be approved by both chambers, so it reconciled interests of large and small states

A New Constitution is ApprovedSeptember 17, 1787

Ratification ProcessDelaware- December 7, 1787 Pennsylvania - December 12, 1787 New Jersey - December 18, 1787 Georgia - January 2, 1788 Connecticut - January 9, 1788 Massachusetts - February 6, 1788 Maryland - April 28, 1788 South Carolina - May 23, 1788 New Hampshire - June 21, 1788 Virginia - June 25, 1788 New York - July 26, 1788 North Carolina - November 21, 1789 Rhode Island - May 29, 1790

Ben Franklin’s Speech

Debating Ratification:Federalists v. Antifederalists

The Constitution included liberties before the addition of the Bill of Rights1. Writ of habeas corpus may not be suspended2. No bill of attainder or ex post facto law may be

passed by Congress or states3. Right of trial by jury guaranteed4. No religious test for federal office5. No law impairing contractual obligations

Most states already had their own bill of rightsFramers believed that they were creating a

government with limited powers

Why were the Bill of Rights not included in the Constitution?

Framers soon realized that the Constitution would not be ratified by large states without a promise that a Bill of Rights would soon be added.After the ratification of all 13 states, Madison introduced a set of proposals for the Bill of Rights to Congress.Twelve were approved by the Congress and ten were ratified by the states.

Regulation on the number of representatives No law varying the compensation of Senators and

Representatives during a termThe Bill of Rights went into effect in 1791.Originally these amendments did not limit state power over citizens, only federal power.

A Need for a Bill of Rights

Article I- Legislative BranchArticle II- Executive BranchArticle III- Judicial BranchArticle IV- Full faith and credit, new

statesArticle V- Amendment process Article VI-Supremacy clause, oath of

office, no religious testArticle VII- Ratification process

Constitution Overview

Framers had no intent of creating a pure or direct democracy.

Lack of minority rights, popular passions, time and distance

Created a representative democracyHouse elected directly by the peopleSenate elected by state legislatures (17th amendment)President elected by the electoral collegeAmendment process difficult

The Constitution and Democracy

1. Congressional Legislation2. Presidential Actions3. Custom and Usage4. Judicial Review Marbury v. Madison (1803)

Informal Methods of Constitutional Change

Reducing the separation of powersMaking the system less democraticReduce the power of the court

Constitutional Reform: Modern ViewsIs the federal government too weak or too strong?

1. Separation of Powers- political power is divided by three separate branches of government

2. Checks and Balances- political power in the branches of government is restrained by other branches

3. Federalism- government authority is divided between the federal and state governments

Under these principles, government powers are divided into three broad categories:1. Enumerated powers2. Reserved powers3. Concurrent powers

Key Principles

“The different governments will control each other, at the same time each will be controlled by itself.” James Madison

Separation of Powers The

Founders extended the limits on the power of the government by further dividing its powers.

Government Power

Legislative Executive Judicial

Checks and BalancesThe system of check and balances extends the

restrictions established by the separation of powers.

Each branch of government has the built-in authority and

responsibility to restrain the power of the other

two branches. This system makes

government less efficient, but also

prevents tyranny by one branch. (p.29)

37Basic Principles

•Black slaves made up 1/3 of the population in 5 of the Southern states.•Framers could not have ended slavery and ratified the Constitution. •The “Greatest Compromise”

Representatives determined by 3/5 of slave populationNo law to prohibit/limit slave trade until 1808Return of fugitive slaves to owners

The Constitution and Slavery

Chapter 3: Federalism

Balance of PowerState Federal

Theories of FederalismDual Federalism Cooperative Federalism

Main Elements

1. Necessary and proper clause should be narrowly defined…enumerated powers only

2. National government powers are purposefully limited by the Constitution

3. Nation and states are sovereign in their spheres

1. National and state agencies work together

2. State and nation routinely share power

3. Power in not concentrated in any government level or agency

Critical Difference

Narrow interpretation of elastic clause and states’ rights

Broad interpretation of necessary and proper clause and the 10th amendment

Ideological alignment

Conservative Liberal

The balance of power between the nation and the states has always been political. Over time the power has shifted from the states to the national government for two key reasons:

1. Historical circumstances (i.e. Civil War, New Deal, Desegregation , War on Poverty)

2. Constitutional Amendments(Fourteenth and Sixteenth)

Other considerations:1. Federal Mandates2. Grants-in-Aid (Categorical and Block

Grants)3. Judicial Interpretation

The Dynamics of Federalism: Legal Sanctions and Financial Incentives

McCulloch v. Maryland (1819)

New Deal Desegregation War on Poverty Nixon’s New FederalismReagan and Bush

Developing the concept of Federalism