Chapter 2 + 6 Principles of the Constitution Assessment

Constitutional Convention

• A meeting attended by state delegates in 1787 to fix the Articles of Confederation

Writ of Habeas Corpus

• The right of people detained by the government to know the charges against them

Bills of Attainder

• Legislative act that declares someone or a group of people guilty and imposes punishment without a trial

• Prohibited by the Constitution

Ex Post Facto Laws

• Laws punishing people for acts that were not crimes at the time they were committed

Virginia Plan

• A plan of government calling for a three-branch government with a bicameral legislature, where more populous states would have more representation in Congress

• Lower house: directly elected representatives

• Upper house: representatives nominated by state legislatures

New Jersey Plan

• A plan of government that provided for a unicameral legislature with equal votes for each states

Bicameral

• A two-house legislature

Grand Committee

• A committee at the Constitutional Convention that worked out the compromise on representation

Great (Connecticut) Compromise

• An agreement for a plan of government that drew upon both the Virginia and New Jersey Plans

• Settled issues of state representation by calling for a bicameral legislature with a House of Representatives apportioned proportionately and a Senate apportioned equally

Three-Fifths Compromise

• An agreement reached by delegates at the Constitutional Convention that a slave would count as three fifths of a person in calculating a state’s representation and taxes

Compromise on Importation

• Congress could not restrict the slave trade until 1808

Thomas Hobbes

• 17th Century English philosopher that believed that humans are inherently selfish and violent and the only way to escape that is through a social contract with a strong federal government

• Power to the President

Articles of Confederation

• Ratified in 1781

• Created a union in which the states carried most of the power

• Established a weak federal government

Order vs. Liberty

• The government controls its people (order) and then itself (liberty)

Anti-Federalists

• People opposed to the proposed Constitution who favored stronger state governments

Madisonian Model

• Structure of government in which the powers are separated into 3 branches (legislative, executive, judicial)

Thwart the Tyranny of the Majority

• To implement measures that will prevent a majority from suppressing the rights and interests of minority groups within a democracy

Minority Rights

• The protections and freedoms of individuals in minority groups

• Prevents tyranny of the majority

Limited Government

• A government that is prevented from tyranny through a system of checks and balances and distribution of power

• Government must be limited to prevent it from taking away rights and liberties

• Done through the powers in Article 1, Section 8 and checks and balances

  • Free elections

• Ex. Coal ash can not be labeled hazardous waste by the EPA because of the lack of federal law regarding it

• Ex. Congress passes DOMA (Defense of Marriage Act), saying that woman-man relationships are the only ones that can get married

  • U.S. v. Windsor - Didn’t get social security benefits from her wife because they technically couldn’t be married

    • 14th Amendment couldn’t be used to strike down DOMA because it says “no state shall”

    • 5th Amendment was used to strike down DOMA because her right to property was taken away

Checks and Balances

• A design of government in which each branch has powers that can prevent other branches from making policy

• Ex. Senate ratifies treaties after President negotiates them

• Ex. Congress can declare war

• Ex. Congress can override a veto with a 2/3 vote

• Ex. Youngstown v. Sawyer

• Ex. Justice Jackson’s Opinion: the 3 pronged power of Presidential Power

  • President can act in the cases in which the President was acting with express or implied authority from Congress

  • Grey Area - Cases in which Congress has thus far been silent

  • President can not act in cases in which the President was defying congressional orders

    • Applied to Truman in Youngstown v. Sawyer

• Ex. Limiting the Bush Administration’s War on Terror

  • Detainee Treatment Act of 2005 → Amendment added to the Defense Appropriations Act of 2006 by Senator John McCain

    • Prohibits inhumane treatment of prisoners (Guantanamo Bay) by confining interrogations to the techniques in the Army Field Manual (which comes from the Geneva Conventions - outlaws torture)

    • McCain adds the Detainee Treatment Amendment to the Defense Appropriations Act because Busch would be forced to sign it (the line item veto didn’t exist then)

• Ex. Line Item Veto: President can strike down 1 line of a bill/amendment

  • Was declared unconstitutional because the President can’t legislate

• Ex. Bush adds the signing statement → “unitary executive branch” = unchecked executive power regarding national security

• Ex. Hamdi (American citizen) v. Rumsfeld and Hamdan (not American citizen) v. Rumsfeld

  • Dealt with the detention and trial of non-U.S. citizens and U.S. citizens labeled "enemy combatants" by the U.S. government

  • Citizens or not, they should both be given their 5th Amendment rights (Geneva Conventions)

• Ex. War Powers Act of 1973

  • Rein in Imperial Presidency

  • A response to the way LBJ escalated the war in Vietnam and an attempt to limit the power of the President

  • President must notify Congress within 48 hours of deploying troops, Congress passes a resolution for deployment of troops, and then after 60 days, Congress can vote to extend deployment or bring troops home

  • Technically unconstitutional because President is commander in chief, but was never brought to the Supreme Court

Federalist No. 51

• An essay in which Madison argues that separation of powers and federalism will prevent tyranny

• Checks and balances, democracy, natural rights, and social contract

Federalist No. 10

• An essay in which Madison argues that the dangers of faction can be mitigated by a large republic and republican government

• Supports pluralism and relative economic equality

• Illustrates the need for a sizable majority (the middle class/moderates!)

Factions

• Groups of selfish people

• Ex. Political parties

Middle Class Constitution

• Message: You cannot have political equality unless you have relative economic equality

Senate as a “cooling saucer”

• The Senate is a moderating body that “cools down” the “hot” or passionate legislation from the House of Reps

• Longer terms

• Aren’t as hungry for change as the House of Reps

Shays’ Rebellion

• An uprising against a Massachusetts government because of political and economic reasons

• Causes a change from the Articles of Confederation

Slave Trade/Commerce Compromise

• Agreement reached during the drafting of the Constitution

• Addressed issues of interstate commerce and the slave trade

• Balanced interests of the North and South

Hamilton vs. Jefferson

• Hamilton: rights of property, elite, economic order, business interest, laissez-faire

  • Would want a senate

• Jefferson: rights of people, consent of the governed

  • Would want a house of representatives

Amending the Constitution

• The founders designed a system that makes change slow and difficult to achieve

• Process → Proposal by Congress or states and then ratification

“Living Document”

• The idea that the Constitution changes with the times

• Loose constructionist view

Originalism (original intent)

• Interpretation of the Constitution that aims to follow how it would’ve been understood at the time it was written

• Strict constructionist view

The evolution of the 2 great factions in American political history

• Anti-Federalists and Federalists have become Republicans and Democrats

Brutus 1

• Anti-Federalist paper arguing that the country was too large to be governed as a republic and that the Constitution gave too much power to the national government

• Supported a small republic and a participatory democracy

Article 1

• Established the legislative branch of government (Congress) and consists of the House of Reps and Senate

• Section 8

  • Enumerates the powers of Congress to tax, regulate commerce, coin money, etc.

• Section 9

  • Restricts Congress’ power, prohibiting it from suspending habeas corpus except in rebellion, and forbids bills of attainder and ex post facto laws

• Section 10

  • Limits state power, prohibiting them from making treaties, coining money, etc.

Article 2

• Establishes the executive branch, headed by 1 president, detailing elections, powers, and duties to enforce federal laws

Article 3

• Establishes the judicial branch, creating the supreme court and authorizing Congress to establish lower federal courts

Popular Sovereignty

• The power to govern is in the hands of the people

• Can be expressed through voting or the electoral college

Separation of Powers

• A design of government that distributes powers across institutions in order to avoid making one branch too powerful on its own

• The powers to make (legislative), enforce (executive), and interpret (judicial) laws are all separate

• Ex. The EPA (executive branch) can not pass law regarding coal ash

Youngstown v. Sawyer

• Limited the power of the president to seize private property

• The President can only declare war with the consensus of Congress (and therefore the people)

  • Truman lost consensus when the war wasn’t going well and he fired McArthur

• Truman took over the nation’s steel mills for national security and the steel mill companies sued the government

• Truman lost 6-3 (even with all Democratic judges!)

  • The Supreme Court prioritized the rule of law over their loyalty to a man (Truman)

• Taft-Hartley Law: The President may not nationalize industries in times of crisis without the approval of Congress

• Imperial Presidency: In times of crisis, the President takes on more power than they should to fix the problem

Federalism

• State power vs. Federal power

  • Power is divided between the states and national government

• Different states have different needs, but there are some problems too big for the states to handle on their own

• Ex. Coal ash disposal is regulated by the states

• Ex. Anti-Miscegenation Laws - Made it illegal for interracial marriage to occur

  • Loving v. Virginia - Strikes down these laws using the 14th amendment “equal protection” clause

• Ex. Full Faith and Credit Clause - Legal documents from 1 state must be recognized in another state (essentially means that one state can make federal law)

• Ex. Obergefell v. Hodges

  • Strikes down a state law and declares gay marriage legal

• Ex. McCulloch v. Maryland (1819)

  • Maryland attempted to tax the National bank

  • A National bank is not mentioned in the Constitution

  • McCulloch won unanimously

    • Necessary and Proper Clause → A National Bank is necessary and proper for Congress to carry out the powers in Article 1, Section 8

    • Supremacy Clause → No state can violate the law of the land

  • Increased powers of the federal government and Congress and established that federal law is supreme over state law

Griswold v. Connecticut

• Created the right to privacy

• Court cases amend the constitution!

Format of the Constitution

• Articles of the Constitution get consecutively smaller

  • The most trust is in the legislative branch

  • Powers were most abused by the judiciary branch in history

  • They didn’t write much in Article 2 because they knew that Washington would fill in the blanks

• Articles of Confederation

  • Shays’ Rebellion proved the Articles to be unsuccessful

  • Could not tax

Judicial Review

• The power of courts to examine and invalidate laws or actions from the legislative and executive branches that they find unconstitutional

• The authority of the Supreme Court to strike down a law or executive action if it conflicts with the Constitution

• Established in Marbury v. Madison

Marbury v. Madison (1803)

• Midnight Judges - John Adams’ attempt at packing the court with Federalists

• Judiciary Act of 1789 - Gives the Supreme Court original jurisdiction (case can go straight to the Supreme Court) to hear Marbury’s case

  • Unconstitutional because it expanded the Supreme Court’s original jurisdiction beyond what the Constitution established in Article 3

• Madison won (unanimous)

• Established judicial review → solidified the judiciary as a co-equal branch of the federal government and created a check on the other branches

Federalist No. 78

• Written by Hamilton

• Judicial branch is the least powerful branch

• Judicial review

• Judges should stay for life

Enlightenment Principles

• Montesquieu

  • Separation of powers

• Harrington

  • Crisis of the Middle Class Constitution

  • Power always follows property

• John Locke

  • Enlightenment philosopher that believed in natural rights (life, liberty, and property) and the social contract