Principles Of The Constitution

 

I. Limited government: dilemma of wanting a more effective government, but also a limited government that did not become tyrannical

A. Constitutional government

B. Bill of Rights as a safeguard against possible tyranny from a new, strong, distant government

C. Free elections, but potential of majority faction à Madison’s "auxiliary precautions"

II. Separation of powers

A. Division of power among the legislative, executive, and judicial branches

B. Influence of Montesquieu

C. Colonial experiences

D. Danger of one branch combining forces with another branch à checks and balances

III. Checks and balances

A. System of restraints in which each branch can check the other two

B. Examples: veto, veto override, appointment and confirmation, treaty making and ratification, defense funding and Commander-In-Chief

C. Political independence within each branch: no branch is dependent upon the other two for election (exception:

judges are appointed by President) and continuance in office (life terms for judges ameliorate presidential influence)

D. Staggering of terms within each branch

IV. Judicial review

A. Power of courts to strike down laws or governmental actions

B. Not explicitly provided for in Constitution à analysis of it being implicitly within the Constitution

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

2. Marburyà Marbury’s request for a writ of mandamus from the Supreme Court to order the delivery of his commission ecision of Marshall and the Court: section 13 of Judiciary Act of 1789 enabling the Court to issue a writ of mandamus through original jurisdiction in this type of case was unconstitutional

3. Analysis

aa. 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.

bb. 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.

V. Changing the Constitution informally, i.e., without adding Amendments

A. Constitutional A framework à details to be filled in later

B. Due to difficulties of formally changing Constitutional, informal ways developed

1. Acts of Congress (e.g., Judiciary Act of 1789)

2. Judicial rulings (e.g., Brown v. Board)

3. Presidential actions (e.g., police actions since WWII)

4. Customs and traditions (e.g., Cabinet, parties, committee system in Congressional, Senatorial courtesy)

VI. Changing the Constitution formally

A. Legacy of Articles: Unanimous vote to amend à impractical à desire to make process easier

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

1. Dissatisfaction by interest groups with court decisions

2. Gridlock in Congress

C. Process of amending reflects federal system

1. Proposal

aa. 2/3 votes from both houses of Congress (all done this way).

bb. Constitutional. Convention called by congress at request of 2/3 of states à serious implications and fears of such a gathering.

2. Ratification

aa. ¾ of state legislatures (all but one done this way)

bb. Ratifying conventions in ¾ of states (e.g., 21st Amendment – a more directly democratic way

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