Structure and Powers of the National Government Flashcards
Declaration of Independence
Thomas Jefferson’s masterpiece by which the US declared freedom from Great Britain for GRIEVANCES including taxation without representation, king’s ability to strike down colonial laws he didn’t like, and judges’ lack of life tenure.
SIGNIFICANCE - Country deeply rooted in…
- Federal popular sovereignty, as inspired by Locke and the Glorious Revolution. Jefferson and Madison contradicted this in the KY and VA Resolutions, though, when they declared that the STATES are sovereign, bound together by a compact.
- Affirmation of human dignity, declaring humans to be inherently equal, contrary to what Taney, et al., tried to claim in Dred Scott.
- Natural rights, based on Locke’s notion that the government protects, rather than creates, rights.
LEGAL DOCUMENT? Many argue that it legally guarantees Americans life, liberty, and the pursuit of happiness.
- This understanding is bolstered by the majority of states’ inclusion of Lockean Clauses that strengthen individual liberties’ protections.
- SCOTUS has seemed to implicitly recognize its power in cases regarding slavery, race discrimination, sex discrimination, etc.
- Written like a legal brief–lays out abuses of power and argues that the only legitimate outcome is freedom from monarchical rule.
Articles of Confederation
This was our first, failed attempt at creating a national government.
WEAKNESSES
- States, rather than the people, were sovereign, meaning that the states were anchored together by mere treaty.
- No taxing power–states had a lot of say over whether they gave money to the federal government, so the government quickly found itself with a dangerously inflated economy.
- No power to regulate commerce
- The legislature was disproportionately strong–no real executive or judicial branch.
- The legislature was unicameral and wasn’t proportional to the population, meaning that larger states were under-represented.
- Difficult to amend or pass legislation–amendments required unanimous consent; legislation often required a supermajority.
OUTCOME
The Articles’ failure led to the Philadelphia Constitutional Convention, which ultimately begat our Constitution.
Philadelphia Constitutional Convention
The Framers were originally called to amend the Articles after Rhode Island basically held the other states hostage by refusing to approve a commerce amendment. Despite pervasive doubts about whether drafting an entirely new Constitution was allowed under the Articles, the Framers did it anyway.
PURPOSES
- Protects against fleeting passions and mob rule.
- Serves as a gag rule for divisive issues.
- Allows for intergenerational lawmaking.
- Creates certainty and predictability, thereby promoting the rule of law (in England, Constitution is unwritten–lots of debates on what’s even included).
- Creates a structure for a robust national government.
- Limits and divides power horizontally (separation of powers) and vertically (federalism).
- Promotes justice, general welfare, domestic tranquility, liberty, and economic growth by explicitly protecting those things, creating security for citizens.
SUNSET CLAUSE DEBATE
*Jefferson said that the Constitution should be rewritten every 20 years to prevent dead hand rule.
*Madison said that was a terrible idea and would result in perennial revolutions. This was correct–imagine if we’d rewritten the Constitution during McCarthyism, for instance.
SGC NOTE: Amendment process is a way to subtly “sunset” out bad law without upending everything.
Federalist Papers
Nearly 100 essays written by Hamilton, Madison, and Jay in order to convince NY to ratify the Constitution by laying out Federalist arguments and shooting down Anti-Federalist arguments.
IMPORTANT FEDERALIST PAPERS
- 1 - Hamilton calls for a full union of the states, rather than a mere confederation.
- 10 - Madison discusses how to prevent the dangers of factions and advocates for a large republic.
- 39 - Establishes that the Constitution would make the United States a republic.
- 40 - Addresses doubts that the Convention is authorized to create a new Constitution and finds that, yes, state directives indicated that representatives were to fix the Articles, which the Framers did by expanding upon their ideals.
- 43 - Madison defended the ratification process, which required 9/13 states, rather than the Articles’ 13/13.
Ratification of the Constitution
RATIFICATION PROCESS
- Each state held a special convention to vote on ratification, and some were dangerously close (MA, VA, NY, NH).
- A number of states, including MA, only ratified with the understanding that a Bill of Rights was soon to follow.
- NC and RI were the last to ratify–some would say they were coerced.
COMPROMISE
- Representation - Great Compromise created the Bicameral Legislature, with its split representation.
- Slavery - 3/5 Compromise was the middle ground between Northerners who didn’t want South’s slaves acting as pawns for Southern control and Southerners who wanted more power; Fugitive Slave Clause required Northern states to return escaped slaves, despite repugnancy to many Northerners.
LEGALITY
- Articles were just a treaty between sovereign states; treaties can be unilaterally broken.
- It just expanded the Articles in many ways, rather than starting anew.
- Government needs consent of the governed; people no longer consented to the Articles, so something new needed to happen.
Anti-Federalists
The political group that was most wary of the new Constitution, since it consolidated so many rights within the federal government/away from the states and the people. Their push-back led to the Bill of Rights.
RIGHTS STRESSED:
- Procedural rights in criminal cases
- Liberty of the conscience
- Liberty of the press
SPECIFIC CONSTITUTIONAL DEMANDS
- Safety from search and seizure
- Indictment by grand jury
- Confrontation of witnesses
- Protection from cruel and unusual punishments
Bill of Rights
First 10 Amendments to the Constitution; guarantees individual rights and safety from governmental overstep. Rooted largely in British offenses–protection against quartering troops in your home, for example. A number of states, including Massachusetts, only signed on because they understood that a Bill of Rights was in the making.
FEDERALISTS - didn’t want it
- Argued it was unnecessary, since Constitution already limited the federal government to its enumerated powers.
- Argued that it’s harmful to individual rights, since it could be read as limiting Americans’ rights only to what’s listed.
ANTI-FEDERALISTS - wanted it
*Argued that it was necessary, given that otherwise, the federal power could trample individuals and states. This is arguably true–look how vast the Commerce Clause is today; now imagine it without the Bill of Rights as a counterbalance.
Alien and Sedition Acts
1789 - French Revolution broke out, and England soon went to war against France.
AMERICAN SENTIMENTS
- Pro-England (Adams, Hamilton) was alarmed at the possibility of mob rule and saw that they were closer to the French aristocracy than the revolutionaries, meaning that they’d be the ones executed.
- Pro-France (Jefferson, Madison) knew the revolutionaries personally and loved their message, despite any inherent violence.
ALIEN ACTS - BACKGROUND
- Alien Friends Act - President (Adams) can unilaterally deport any non-US citizen deemed dangerous
- Alien Enemies Act - President can unilaterally deport any non-US citizen from a country at odds with the US, regardless of perceived threat.
ALIEN ACTS - LEGAL ISSUES
- No enumerated power to deport - could it come from Necessary and Proper? A broad reading of Commerce? SGC: regardless, it’s a moot point, since it’s so well established in past practice.
- Seemingly violates due process, which applies to even non-citizens.
SEDITION ACT - BACKGROUND
*President could fine and imprison anyone publishing anything scandalous or malicious against the government with the intent too defame or stir up sedition.
SEDITION ACT - LEGAL ISSUES
- No enumerated power to regulate speech–Necessary and Proper is a possible origin, but that’s pretty weak, considering that it’s not super necessary for anything within Congress’s enumerated rights. No good past practice argument–America has allowed governmental criticism, despite Britain’s seditious libel cause of action.
- DEFINITELY violates the First Amendment! We highly value political speech and freedom of press.
Lyon’s Case
Lyon was accused of violating the Sedition Act after criticizing the President for being a power-monger. Adams chose to prosecute, and the federal courts didn’t strike down the Sedition Act, despite its faulty reasoning.
Virginia and Kentucky Resolutions
Both Virginia and Kentucky adopted resolutions holding the Alien and Sedition Acts to be unconstitutional.
VIRGINIA
*Madison wrote it, operating under the belief that states have the right to express their opinions on constitutionality.
KENTUCKY
- Jefferson wrote it, operating under the radical belief that individual states have actual say on the constitutionality of federal actions and can even nullify federal law.
- Very dangerous argument that the South ultimately used to justify secession, since, under this logic, the Union was just a compact between states, meaning that states could unilaterally choose to leave in a move harkening back to the Articles’ weakest aspects. SCOTUS struck this down once and for all in Texas v. White.
RESPONSE
Rhode Island responded, saying that Article III, sct. 2 vests the authority of determining constitutionality in the hands of the federal judiciary, which harkens to the later holding in Marbury.
TAKEAWAY
*The United States is NOT a compact composed of sovereign states…“we the people” ensures otherwise.
Election of 1800 and Jefferson’s Pardons
Jefferson ran against the incumbent, Adams. The Alien and Sedition Acts were a huge issue in the elections; Jefferson, who opposed them vehemently, ultimately won.
JEFFERSON AND THE ACTS
*Jefferson refused to prosecute offenders under the A&S, begging the question whether he was failing under the “Take Care” clause. He personally believed that the president had the right to interpret the Constitution and carry out laws in accordance with that understanding–no need to uphold something he’s deemed unconstitutional.
PEOPLES’ SOVEREIGNTY
*We, the people, shaped this constitutional analysis! The citizenry elected a president who had very strong beliefs about a contested issue, so by electing him, we changed the course of constitutional interpretation.
TURNOVER OF POWER
* This was the first-ever peaceful transfer of executive power in US history–Washington never ran as an incumbent, so it was massively important that Adams voluntarily gave up his seat to Jefferson, despite the men’s animosity.
