6 Principles of the Constitution

• Popular Sovereignty• Limited Government• Separation of Powers• Checks & Balances• Federalism• Judicial Review

Popular Sovereignty

• People are the source of government’s power; government is based on the consent of the governed.

I. Separation of Powers A. To Madison, tyranny was govt.

that controlled all 3 branches of gov’t. Framers’ answer: division of power among legislative, executive, and judicial branches.

B. This system diffuses power instead of concentrating it.

C. Checks and balances were instituted to thwart danger of one branch combining forces with another branch .

D. Influence of Montesquieu.

II. Checks and BalancesA. 18th century view of govt. as something to be restrained, and

modern view of govt. as something to be used for the common good.

B. System of restraints in which each branch can check the other two(Reflects fear of tyranny.) Checks and balances serve as means of intentionally building inefficiency in order to prevent govt. abuse of power. Examples: veto, veto override; appointment and confirmation; treaty-making and ratification; defense funding and Commander-In-Chief role.

C. Political independence: no branch is dependent upon the other two for election (exception: judges are appt'd by President, but life terms for judges ameliorate presidential influence.)

D. Staggering of terms within each branch (midterm congressional elections allow voters to check the President halfway into his/her term.)

Checks and Balances

II. Checks and Balances—Weakened?Growth of Federal Bureaucracy

Development of numerous agencies w/legislative, executive, and judicial functions.

Example: Congress established an IRS to collect taxes, and then granted the IRS authority to help write the tax code, enforce the tax code, and settle disputes over the tax code.-- Thus, growth of bureaucracy has caused a weakening of checks and balances.

II. Checks and Balances—Weakened?Emergence of U.S. as world

power after WWII:

A. Areas of "national interest" extend around the world.-leader of free world. -only remaining superpower after Cold War

B. These responsibilities need to be dealt with in a strong and efficient manner --->power has concentrated in Executive Branch ("imperial presidency") weakening checks and balances.

III. Limited GovernmentA. Constitutional government:

gov’t. has only those powers expressed in Constitution.

B. Bill of Rights: safeguard against possible tyranny from new, stronger, more distant government. Amendment 10 reflects view that states would have substantial powers--the central gov’t. could exercise only those powers delegated to it by the Constitution. States would have all else (Reserved Powers.)

C. Free elections

IV. ORIGINS OF AMERICAN FEDERALISM

Federalism: division of power between the national gov’t. and state gov’ts. Both get their powers from a Constitution, not each other.

Reasons for federal system in U.S. A. Unitary system was undesirable -- too

reminiscent of British rule. Fear of strong, distant gov’t.B. Confederate system undesirable -- too reminiscent of Articles.C. Allows unity, but not uniformity -- allows for differences among states.D. More suitable for geographically large and heterogeneous nation -- allows for differences among people.E. More likely to check tyranny.

V. Judicial Review.A. Power of courts to strike down laws or

government actions as unconstitutional.

B Not explicitly provided for in Const., but need for interpretation most logically falls to the courts.

C. Established by Marbury v. Madison, 1803.1. Facts of case: the end of Federalist control of govt. and appointment of the "midnight judges," including Marbury ---> Jefferson ordered Madison to not deliver commissions to these judges --->Marbury's request for a writ of mandamus (under Sect. 13 of Judiciary Act of 1789) from the Supreme Court to order the delivery of his commission.2. Decision of Marshall and the Court: Section 13 of Judiciary Act of 1789 was unconstitutional.

V. Judicial Review3. Marshall ruled that the Court did

not have the authority to issue the writ, but he paradoxically increased its power by establishing judicial review when the Court struck down section 13.

Jefferson couldn't complain because the midnight judges didn't receive their appointments, but he fumed because his enemy, Federalist John Marshall, increased the power of the Court.

Effects of judicial review: citizens can challenge constitutionality of laws in court by initiating lawsuits litigation has become an important way of making public policy.

Chief Justice John Marshall

Changing the Constitution formally: adding Amendments.

A. Legacy of Articles: Unanimous vote to amend was impractical --- desire to make process easier, but not too easy.

B. Reasons for recent popularity of proposing Amendments (balanced budget, D.C. statehood, ERA):

1. Dissatisfaction by interest groups with court decisions, (flag burning, abortion rights, etc.)

2. Gridlock in Congress.

VI. Changing the Constitution formally: adding Amendments

C. Process of amending reflects federal system.

Proposal:1. 2/3 vote from both houses of Congress (all 27 done this way). No presidential veto possible.

2. Const. convention called by Congress at request of 2/3 of states. a) Never used before. b) Fear of "runaway" convention that might get out of hand and implement wholesale changes in the Const.

Changing the Constitution Formally: adding Amendments

Ratification1. 3/4 of state legislatures. 1) All but one (21st) done this way. 2) Most state legislatures ratify w/simple majority, but some require a supermajority."

2. Ratifying conventions in 3/4 of states. (Amendment 21 done this way.)

A more directly democratic way: people elect delegates who state their positions on the proposed amendment.

Time limits for ratification: generally 7 years (exception of ERA).

Changing the Constitution Informally A. Const. a framework ---> details to be filled in later.B. Due to difficulties of formally changing Constitution, informal ways developed:

1. Acts of Congress (laws & practices)

2. Judicial rulings (e.g., Plessy v. Ferguson, Brown v. Board of Ed., Texas v. Johnson).

3. Presidential actions (police actions since WWII, executive privilege, executive agreements, impoundment).

4. Customs and traditions (Cabinet, political parties, Congressional committee system, senatorial courtesy, presidential nominating conventions)

“Constitution belongs to the living, not the dead” (Jefferson). Jefferson believed

each generation might need new Const. This hasn’t occurred because of the informal changes that have allowed the Constitution to adapt to changing times.