Limited government is a
government that is subject to strict legal limits on the uses of power, so that
it would not threaten people’s liberty. Self-government
is a government one in which the people would be the ultimate source of
governing authority and would have a voice in their governing. Although limited
government and self government can be reinforcing, they also often clash, for
self-government requires that the majority (through elected reps) have the
power to rule, while limited government calls for majority rule to stop at one
point.
The Declaration of Independence is an important precursor to the
Constitution. Locke, Rousseau, and Montesquieu all had influence on the DoI. Locke’s Second Treatise of Civil Government
included the ideas of natural rights:
life, liberty, and property; the consent
of the governed (social contract); and the
concept of limited government. The major parts of the DoI are:
1.
The Philosophical Basis, which establishes that
citizens have unalienable rights and that limited governments are formed with
“the consent of the governed”,
2.
The Grievances, which makes the case against
Great Britain: tax w/o rep, unjust trials, quartering of British soldiers, abolition
of colonial assemblies, quartering of British soldiers,
3.
The Statement of Separation, which says that not
only did the colonists have no choice but to revolt, but that it is not only
the right, but the duty of the Colonists to change the govt.
As a result of the DoI, The Articles of the Confederation could not have
a government with a king. Even though the DoI said that “all men were created
equal”, the social structure did not reflect equality – unalienable rights were
reserved for male white colonists, and property was a requirement for political
office.
The Articles of Confederation established the first form of national
government in the newly independent United States. The Articles set up a weak
national government with a one-house congress with limited power to declare
war, make peace, and sign treaties, the ability to borrow money, no ability to
tax individual states, no authority on interstate trade, no power to draft
soldiers, and no chief executive or national court system. The national government
had to ask the states for money, with which the states rarely complied. Passing
legislation required a two-thirds state majority, which was virtually
impossible as few states ever showed up to meetings. States were dominant and could
create impose tariffs on each other, create their own currency, refuse to amend
the AoC (amendment needed unanimous approval), and refuse to recognize national
treaties.
The AoC turned out to be very ineffective, as there was virtually no
foreign policy: national security was endangered. States, free to do what they
wanted, established certain tariffs to compete economically against other
states. A single notable accomplishment was the Northwest Ordinance, which abolished
slavery in the newly acquired Northwest Territories. Daniel Shay led a revolt
concerning promises that had been promised to veterans. Congress had run out of
money to pay the veterans for their military service. Shay’s Rebellion
frightened wealthy interests, who called for an end to the revolt. Congress had
no army to send immediately. This was proof that Congress was weak and that
civil unrest was spreading.
Hamilton and Madison eventually persuaded the other delegates towards
meeting for the Constitutional Convention in Philadelphia in 1789. Among the
arguments for a new Constitution were Federalist No. 10, which said that factions could paralyze minority
representation in a democracy, and Federalist No. 47, which talked about the
benefits of Checks and
balances.
Many issues were debated regarding the Constitution. Compromises reached
at the Constitutional Convention: voting, representation, slavery, and trade.
The founding fathers were concerned with protecting the wealth of the property
class. The criteria for voting were decided by the states to be ownership of property.
The Virgina Plan (also called the
large-state plan) included separate judicial and executive branches as well as
a two-chamber Congress that would have supreme authority in all areas “in which
the separate states are incompetent”, particularly defense and interstate
trade. Heavily populated states would have more representatives that would the
lightly populated ones. On the other hand, The
New Jersey Plan (the small-state plan) called for a stronger national
government where each states, large or small, would have a single vote. The
debate over the two plans dragged on for weeks before the delegates reached
what is now known as The Great
Compromise. It provided for a bicameral (two-chamber) Congress. The House
of Representatives gave seats to states on the basis that states with larger
populations would have more House members, and each state would have at least
one representative. The Senate would be apportioned on the basis of an equal
number of senators (two) for each state. Continuing on the issue of
representation, if slaves were represented, the South could easily hold the
power in the House of Representatives. The North disliked this as it had less
slaves, so the states agreed on The
Three-Fifths Compromise: every five slaves would count as three people for
representation and tax purposes. The states also agreed on a tariff compromise:
the North wanted to tax southern exports to Europe and protect their own
manufactured goods. The South did not want to tax European goods to prevent own
exports from being taxed. They agreed to only tax imports. The delegates also addressed
the weakness of the AoC in economic issues. Congress could tax, regulate
interstate and foreign commerce, create a viable national currency, and in the elastic clause, make “all laws
necessary and proper” to carry out the stated powers of Congress. States were prohibited
from duplicating national powers that could affect the national economy.
Congress stated that any change to the AoC had to be agreed upon by all
thirteen states. However, this was close to impossible. The delegates decided
to ignore Congress and set up their own process of ratification. The document
was to be submitted to the states, where it would become law if at least nine
states approved the Constitution.
There was a heated ratification debate. The Anti-Federalists raised many arguments against the
Constitution:
l
They were concerned with the absence of a bill
of rights
l
They saw a central government controlled by
political elites, becoming a repressive government
l
The presidency might become an American monarchy
(it was slightly comforting that the Electoral College would elect the
President)
l
The motives of the men who wrote the
constitution came into question. They were men of wealth and education who had
acted in response to the debtor’s riots.
l
Supported a revision of the AoC to address
interstate economic cooperation and national defensive ability
The Federalists (supporters of
the Consitution) raised the following arguments: the government of the Constitution
would correct the flaws of the AoC, the government would be strong enough to
forge a secure and prosperous nation, and that the restrictions on the
government’s power would prevent it from endangering neither states nor
personal liberty.
The ratification debate may or may not have changed many people’s minds,
but people assumed that George Washington, the nations’ most popular and
trusted leader, would become the first president. This assumption tipped the
balance in favor of ratification.
The Constitution provided the world with a new model of government in
which a piece of paper would represent a higher authority than the dictates of
any political leader or institution. The major goals of the Framers were:
l
To establish a government strong enough to meet
the nation’s needs, where the federal government would have enough power to
control areas such as defense and commerce
l
To establish a government that would not
threaten the existence of the separate states
l
To establish a government that would not threaten
liberty à
checks and balances
l
To establish a government based on popular
consent à
direct and indirect election of public officials
The Federalists believed that the new Constitution would protect the
minorities from a “tyranny of the majority”. Alexander Hamilton, John Jay, and
James Madison, who all signed by the pseudonym Publius, wrote the Federalist
Papers. The papers said that a government of checks and balances and separation
of powers was necessary. It provided constitutional safeguards for individuals.
The Anti-Federalists were led by newly emerging middle class. They
released publications such as the Pennsylvania Pocket and Letters from the
Federal Farmer. They penned essays as written by Brutus. The Anti-Feds feared that Constitution would establish an
economic elite. The Anti-Federalists also insisted on a bill of rights.
The Preamble
defines the objectives of the Constitution: to form a more perfect union, to
establish justice, to ensure domestic tranquility, to provide for the common
defense, to promote the general welfare, and to secure the blessings of
liberty.
Article I
broadly defines the legislative powers of Congress, which are split between the
two houses. In 1995 the Supreme Court ruled in Thorton v Arkansas that state-imposed term limits were
unconstitutional; they needed to pass through an amendment.
The nature of
the chief executive is defined under Article II. A power given to the executive
is the inherent power of the
president (emergency powers). By signing congressional legislation into law,
the president assumes the responsibility of enforcing the laws of the land. Reference
is made to the president’s authority in the area of foreign policy.
Article III
outlines the nature of he judicial branch. Judicial review was not a
specifically given power; rather, it was established in Marbury v Madison (1803). Article III also defines treason, along
with the punishments that can be given: The Rosenbergs were executed for giving
away information regarding the atom bomb to the Soviets.
Liberty is the principle that
individuals should be free to act and think as they choose, provided they do
not infringe unreasonably on the freedom and well being of others.
These are the Constitutional Provisions for Limited Government:
i.
Grants of power
ii.
Separated institutions
iii.
Federalism (division of political authority
between the national government and the states)
iv.
Denials of power
v.
Bill of Rights
vi.
Judicial review
vii.
Elections
The framers chose to limit the national government in part by confining
its scope to constitutional grants of
power. Powers not granted by Congress are in theory denied. Denials of power: The US constitution
expressly prohibits imprisonment of a subject without trial. In addition, the
Constitution is very hard to amend: 2/3rds Congress majority and 3/4ths state
legislature majority.
Using Power to Offset Power: Decades before the Constitution, the French
theorist Montesquieu came up with a concept of a separation of powers: divide the power of government into separate
branches.
Shared
Legislative Powers: The president can veto acts of Congress, recommend
legislation, and call special sessions of congress. The President also executes
and interprets the laws that Congress makes. The president can get around
Senate opposition to an appointment during a congressional recess. The recess appointment lasts for a year and
then needs Senate approval.
The Supreme Court has the power to interpret acts of congress that are
disputed in legal cases.
Shared Executive Powers: The president’
power to make treaties and appoint high-ranking officials is subject to Senate
approval. Congress also has the power to impeach and remove the president from
office. Congress’s greatest check on executive action are its lawmaking and
appropriations powers à the executive branch cannot act without the laws
that authorize its activities or without the money that pays for these
activities. The judiciary has the power to declare an action unlawful because
the laws that the executive claims to be implementing do not authorize it.
Shared Judicial Powers: Congress can establish the size of the federal
court system, restrict the Supreme Court’s appellate jurisdiction in some
circumstances, and to impeach and remove federal judges from office. Congress
can also rewrite legislation that the courts have misinterpreted and can
initiate amendments when it disagrees with the court rulings on constitutional
issues. The president has the power to appoint federal judges with the consent
of the Senate and to pardon persons convicted in the courts. The president is
also responsible for executing court decisions, a function that provides
opportunities to influence the way rulings are carried out.
The Bill of Rights: The Bill of
Rights are the first ten amendments of the Constitution, which cover rights
such as freedom of speech and religion and due process protections for persons
accused of crimes. These rights are civil liberties.
To the framers, the great risk of popular government was tyranny of the majority. There was a
question of democracy versus republic. By the term democracy, the framers meant a government in which the power of
the majority is unlimited, whether exercised directly or through a
representative body. Thus, the framers thus designed a republic, which is responsive to the
majority but not captive to it. Edumund Burke argued that representatives
should act as the public’s trustees;
representatives are obliged to serve the interest of those who elect them, but
the nature of the interest is for the representatives, not the voters, to
decide.
A state legislature would choose its state’s US Senators. (term: 6 years,
one-third of the senators have their terms expire every 2 years) As a result of
the less frequent and indirect election of its members, the Senate would be
less responsive to popular pressure. A US Representative is chosen by popular
election (term: 2 years) A Federal Judge is nominated by the President and approved
by Senate (term: indefinite, subject to “good behavior”)
Over history there have been changes to make government more responsive
to popular majorities. Political parties are used as a means of uniting
authorities and linking them with popular majorities. There is now direct
election of US senators and popular voting for president (linked with electoral
votes). Primary elections are the
direct selection of party nominees.
Thomas Jefferson was among the prominent Americans who questioned the
Constitution’s limited provisions for self-government. Under John Adams, the
national government increasingly favored the nation’s wealthy interests.
Jefferson challenged Adams in the next presidential election, and, upon
defeating him, hailed his victory as “The Revolution of 1800”.
Jackson was the first president after Jefferson who was willing and able
to involve the public more fully in government. To connect the presidency
closer to the people, Jackson urged states to award their electoral votes to
the candidate who wins the states’ popular vote. Afterwards, it became common
in the states to link popular votes with electoral votes. Presidents as a
result likely won the electoral election if they won the popular vote, with a
few exceptions.
The Progressive Era of the early 1900s brought another wave of democratic
reforms. The Progressives instigated two changes in federal elections: The
primary election and direct election of US senators. Charles S. Beard, a
Progressive, attacked the Constitution as anti-democratic.
The House of Representatives
has 435 members based on a consensus taken every 10 years. Baker v Carr: “one man, one
vote” created guidelines for drawing up congressional districts. The Supreme
Court has been asked to review some districts to ensure racial representation.
The Court ruled controversially in 1995 that a racially apportioned district in
Georgia was unconstitutional based on the equal protection clause of the 14th
Amendment. Some state legislatures created districts that favored the political
party in power: gerrymandering
A representative
has to be at least 25 years old, an American citizen for seven years, and an
inhabitant of the state that the congressman represents. A senator has to be at
least 30 years old, an American citizen for nine years, and a resident of the
state of representation. Many states passed laws limiting the number of
consecutive terms a representative can serve, but in 1995 the Court found it
unconstitutional. The powers of the House link it closer to the people: powers
include the ability to start all revenue bills (taxation) and initiating
impeachment. Nixon resigned before the Senate could try him, whereas Clinton
was acquitted. The Senate can pass revenue bills, but after the House has
passed its version. The Senate approves presidential appointments and treaties.
Congress has the
following enumerated powers:
1.
Collect taxes, pay debts, and provide for the
common defense and general welfare
2.
Borrow money
3.
Regulate commerce among the states and with
foreign countries
4.
Establish uniform laws dealing with immigration
and naturalization and bankruptcies
5.
Coin money
6.
Make laws regarding the punishment for
counterfeiting
7.
Establish post offices
8.
Make copyright laws
9.
Establish federal courts in addition to the
Supreme Court
10.
Define and punish piracy
11.
Declare war
12.
Raise and support armies and a navy
13.
Create a national guard
The necessary and proper clause, or the elastic clause, defined the implied powers, which state that Congress
has the power to “make all laws necessary and proper for carrying into
execution the foregoing powers”. Congressional legislation reflects the tenor
of the times: Brady Bill (handgun waiting period), National Bank. Powers denied
to Congress include the denial of the writ
of habeas corpus (giving appeal protection to the accused), the passage of bill of attainder laws (proscribe
penalties without due process), passage of ex
post facto laws (take effect after the act takes place), and the ability
pass export taxes or grant titles of nobility.
The President
must be a natural-born citizen, at least 35 years old, and a resident of the
United States for at least 14 years. The term of office is four years, limited
by a constitutional amendment to no more than two terms.
Specific Powers
and Duties:
1.
The power to act as commander in chief of the
armed forces
2.
The ability to gain information from members of
the executive branch
3.
The power to grant pardons
4.
The powers to make treaties with the consent of
the Senate
5.
The power to appoint ambassadors, justices, and
other officials with the advice and consent of the Senate
6.
The power to sign legislation or veto
legislation
7.
The duty to give Congress a State of the Union
report
8.
The power to call special sessions of Congress
9.
The inherent power of the president
The President’s
powers have increased over time.
Regarding the
Vice President, the only stated ability of the VP is to preside over the Senate
and be the deciding vote if there is a tie vote. The VP is next in line to succeed
the president in case of death, and can also take over the presidency if the
president is disabled.
The Electoral College consists of
presidential electors in each state. When a voter casts a vote for president,
the vote actually goes to one of the presidential electors appointed by the
President in the state. The number of electors for each state equals the number
of senators and representatives that state has in Congress. The candidate who
receives the most votes from electors receives all the electoral votes in that
state. The voters gather in Washington, D.C., in December and cast their
ballots based on the results of the November election.
Judges have no
qualifications: they “hold their offices during good behavior”. Court has no
set size, but has nine justices today. Franklin Roosevelt attempted to add
justices to the Court in 1937 after the Court ruled a lot of his New Deal
programs unconstitutional, but this was rejected. Appointment process has
become very difficult: nominees are placed under questioning by the Senate
Judiciary Committee. The major power given to the judicial branch is defined
as: the judicial power (which) shall extend to all cases, in law an equity…” The
real power is judicial review, which has grown in importance throughout the
history of the Court. The Constitution describes cases through original
jurisdiction that the Court can hear directly. The vast majority of cases are
brought on appeal from state and federal courts: appellate jurisdiction. Due to
the election process, the Court has no direct responsibility or accountability
to the voters.
Critics point out
the potential of a constitutional crisis developing if one branch attempts to
challenge the authority of another. Factors that can impact the function and
size of the presidency include the role of political parties, the growth of the
federal bureaucracy, the media, and the emergence of the U.S. as a major world
superpower after the Cold War, which requires the president to work with other
countries’ leaders.
Federalism is the division of power
between the government and states. The term “full faith and credit” is used to describe the mutual respect and
legality of laws, public records, and judicial decisions made by the states. States
must respect each other’s laws, but states can challenge federal laws. However,
states are told they cannot challenge their citizens “privileges and immunities”. States are given a “republican form of
government”: limited representative. As said in the Supremacy clause: “The laws of the United States… shall be the
supreme law of the land”. McCulloch v
Maryland established this precedent: Maryland could not tax the national
bank. The Tenth Amendment gave the states reserved
powers, powers not delegated to the Government by the Constitution but also
not denied.
In a national
emergency, the government can restrict its citizens’ rights. During WWII,
Roosevelt ordered Japanese-American citizens living on the West Coast to
internment camps
Not counting the
Bill of Rights and the prohibition amendments, the Constitution has been
amended only 15 times: creating additional power for the federal government
such as the legalization of progressive state tax (16th); limiting
power to the state governments such as prohibiting states from making laws that
deny equal protection for its citizens (14th); adding the right of
popular sovereignty to various groups such as former slaves (13th),
women (19th), and 18-year-olds (26th); taking away and
adding to the power of the voter to elect public officials (17th,
direct election of senators; 22nd, limiting presidential terms)l and
changing the structure of government (25th, presidential succession
and disability)
Two methods to ratification: The first is a two-thirds
vote in both houses of Congress and ratification in three-fourths of the state
legislatures. The second method, only used once (prohibition), is when Congress
must call for a national constitutional convention after a request is made by
two-thirds of the state legislatures: either three-fourths of the state
legislatures must ratify the amendment or three-fourths of ratifying
conventions held in the states must approve it
The Unwritten Constitution: The elastic
clause is perhaps the greatest instrument for change under Congress. Neither the Constitution nor any law
provides for the establishment of political parties, nominating conventions,
primaries, and most of the political systems we are used to. The filibuster (continuous debate) when used in the Senate to
block legislation becomes an additional check. The Supreme Court easily breaks new ground via judicial review. Custom and tradition are an integral
part of government. The two-term
presidency was tradition until FDR broke it. Afterwards, a constitutional
amendment limited the presidential terms to two.
No comments:
Post a Comment