Constitutional Convention Challenges

Different political interests of large and small states

  • representation - (size of population was counted as anyone who was free or not permanently indentured; slaves counted as 3/5 of a person, referred to as just “other people”)

Different economic and social interests of states

  • slavery

  • rural v. cities (all small): were we to be a country of Yeoman farmers or a nation of commerce and industry? nobody new which direction it was going to go

  • Strong v weak central government

  • Protection of individual and state’s rights

Ratification

ELASTIC CLAUSE

→ congress can make any law that is necessary and proper for the government to execute an existing law

  • supreme court looks at it as job security (congressional laws have been challenged as being unconstitutional frequently and the supreme court has to decide whether it falls under this clause)

COMPROMISES

  • bicameral legislature

  • separation of powers

  • checks and balances representation

  • how to count population

  • elastic clause

  • the bill of rights (the first 10 amendments), especially the 10th amendment

  • ratification by 9/13ths

the result: federalism

FEDERALISM

  • included in the original constitution, strengthened by the 10th amendment

  • federalist, Federalist, Federal and federalism

  • federalist - belief in strong central government

  • Federalist - short lived political party in the constitutional period (party that believes in a strong central government)

  • Federal - refers to anything that has to do with the central or national government (i.e. Federal courthouse or Federal office building)

  • federalism - describes the sharing of power

  • federalism and

    • slavery

    • voting

    • education

    • healthcare

    • gun control

  • state legislatures draw the districts (create districts that condense certain groups i.e. democrats condensed into one district, republicans spread out)

  • gerrymandering - political manipulation to make asymmetrical distracts (is constitutional)

  • education not considered important at time of constitution so it is not mentioned, states still in charge of education today. schools largely funded by local taxes so richer areas receive more schools. public schools system develops in the 1870s with rise in immigration

  • healthcare did not exist at the time the constitution was made. not until the 1870s that the medical profession began to refine its practices. US now has a partial national healthcare system for seniors, medicare, only applies to people 65+, or those in extreme poverty which is paid for by the federal government but administered by the states. do not rank near the top when it comes to life expectancy, largely due to healthcare system

  • no national laws to regulate firearms due to the second amendment. national guard is the modern militia. difficult to interpret because they did not have the advanced weaponry that exists today

Presidents can make laws…they can make the equivalent of laws called executive orders

A HIDDEN POWER IN THE CONSTITUTION

  • article II is the basis for the presidential executive orders, that create the power for presidents to extend the interpretation of existing laws or constitutional authority: the President “shall take Care that the Laws be faithfully executed.” Congress cannot override an executive order; only the Supreme Court can declare it unconstitutional

  • examples of executive orders:

    • 1948 truman by executive order desegregated all federal jobs and the US military (jim crowe laws)

    • mexican border law built by executive order

INTERPRETING THE CONSTITUTION

  • Judicial review

    • review of the constitution by the supreme court or lower courts to interpret the constitution and apply it to laws

    • typically does not end up at the supreme court initially unless it is a very high matter, must go to lower court and process through multiple appeals

  • strict constructionists vs. loose constructionists - courts have swung between the two philosophies for many years, guide the way that they interpret cases

    • strict construction → when one looks at a law, there has to be some direct relationship of that law to what is in the constitution

    • loose construction → operate in the spirit of the constitution, but believe the changes in our country were not anticipated in the constitution and think the changes and context of how we live now should play a role in how the constitution is interpreted

JIM CROWE

  • 14th amendment to the constitution states that there is equal opportunity regardless of race

  • 15th amendment guarantees the right of every citizen to vote

active court → one that is doing a lot of reinterpretations of previous supreme court decisions or making new decisions based on a loose or strict construction

Presidents execute the law “executive”

If Congress is unhappy w president, can restrict money bc only they can allocate money

Supreme Court and President can check Congress

Supreme Court can be declared unconstitutional if President feels they are acting unconstitutionally and vice versa

Supreme Court doesn’t have power to enforce their decision, is the responsibility of the President

Congress can decide to impeach a president

MODERN DAY

Prosector cannot charge without approval of the courts

District attorneys are either elected or politically appointed

anybody who wants to blame a specific political party/individual for causing their arrest is misrepresenting how the system works (works on individuals to determine whether or not their are sufficient charges)

FOR WRITING ASSIGNMENT

relate federalism, elastic clause, and executive order to judicial philosophy

  • when the constitution was written, what guidelines and experience did the writers have?

    • what not to do from the british

    • ancient greece

    • roman senate

    • parliament

    • they did not have much because it was such a unique contract

ELASTIC CLAUSE

→ congress can make any law that is necessary and proper for the government to execute an existing law

→ like santa clause - gift to legislative branch to pass laws that aren’t necessarily relevant or present in the constitution

  • supreme court looks at it as job security (congressional laws have been challenged as being unconstitutional frequently and the supreme court has to decide whether it falls under this clause)

FEDERALISM

  • included in the original constitution, strengthened by the 10th amendment

  • federalist, Federalist, Federal and federalism

  • federalist - belief in strong central government

  • Federalist - short lived political party in the constitutional period (party that believes in a strong central government)

  • Federal - refers to anything that has to do with the central or national government (i.e. Federal courthouse or Federal office building)

  • federalism - describes the sharing of power

  • federalism and

    • slavery

    • voting

    • education

    • healthcare

    • gun control

  • state legislatures draw the districts (create districts that condense certain groups i.e. democrats condensed into one district, republicans spread out)

  • gerrymandering - political manipulation to make asymmetrical distracts (is constitutional)

  • education not considered important at time of constitution so it is not mentioned, states still in charge of education today. schools largely funded by local taxes so richer areas receive more schools. public schools system develops in the 1870s with rise in immigration

  • healthcare did not exist at the time the constitution was made. not until the 1870s that the medical profession began to refine its practices. US now has a partial national healthcare system for seniors, medicare, only applies to people 65+, or those in extreme poverty which is paid for by the federal government but administered by the states. do not rank near the top when it comes to life expectancy, largely due to healthcare system

  • no national laws to regulate firearms due to the second amendment. national guard is the modern militia. difficult to interpret because they did not have the advanced weaponry that exists today

A HIDDEN POWER IN THE CONSTITUTION

  • article II is the basis for the presidential executive orders, that create the power for presidents to extend the interpretation of existing laws or constitutional authority: the President “shall take Care that the Laws be faithfully executed.” Congress cannot override an executive order; only the Supreme Court can declare it unconstitutional

  • examples of executive orders:

    • 1948 truman by executive order desegregated all federal jobs and the US military (jim crowe laws)

    • mexican border law built by executive order

    • federal bank established because it helps to execute the us repaying debt, other financial things

  • can be appealed to a court if people don’t like it → judicial review

  • courts can refuse to take up an appeal if they feel it is not worth their time

these ideas contradict a specific literal reading of the constitution, can interfere with the reading of the constitution

federalism - different ideas on how the constitution is shared

constitution can be interpreted in a variety of ways vvv

INTERPRETING THE CONSTITUTION

  • Judicial review

    • review of the constitution by the supreme court or lower courts to interpret the constitution and apply it to laws

    • typically does not end up at the supreme court initially unless it is a very high matter, must go to lower court and process through multiple appeals

    • clearly 2 basic interpretations

    • typically elastic clause is ruled constitutional

  • strict constructionists vs. loose constructionists - courts have swung between the two philosophies for many years, guide the way that they interpret cases

    • strict construction → when one looks at a law, there has to be some direct relationship of that law to what is in the constitution

    • loose construction → operate in the spirit of the constitution, but believe the changes in our country were not anticipated in the constitution and think the changes and context of how we live now should play a role in how the constitution is interpreted. reinterpreting the constitution through a modern lens

HOW DOES FEDERALISM TIE INTO ALL OF THIS

  • first court decision that made roe v. wade had nothing to do with morality, it had to do with the fact that this was a loose constructionist court. since there was no ban on abortion in the constitution, it was considered a matter of privacy protection under the 4th/5th amendment (loose constructionists)

  • 40 years later, another court rules that this is an overreach because it is not mentioned in the constitution, it falls under federalism. this resulted in it falling to the states. (strict constructionists)

  • most recent executive order → wall along the border with mexico was built by executive orders, not law

  • constitutional justification for executive orders, as commander in chief if he thinks there is an imminent danger he is allowed to take action

  • court agreed with the president