Constitutional Foundations

February 7, 2008

PS 426

Context for the Constitutional Convention

lBritish Parliament

lState legislatures

lContinental Congress -- Articles of Confederation

–Articles created a national unicameral legislature with lawmaking power, with each state having one vote. Weak internal procedures and structure. No executive branch or national courts: states responsible for implementing laws.

–Desire to strengthen the national government while preventing majority tyranny. Separation of powers and checks and balances.

The Basic Structure

lProblem of representation: large state/small state debate.

–Virginia Plan: strong national government with representation based on population;

–New Jersey Plan: equal repr.

–Connecticut Compromise: bicameralism, Senate based on equal representation, House based on population. CT as median voter.

STRUCTURE, cont.

lBicameralism — Does small state bias in Senate make a difference today?

–funding formulas

–issues of interest to farmers and rural people (guns, grazing rights)

–do small states have a leadership advantage?

–Impact on the electoral college.

lEach chamber makes its own rules of procedure, elects its own leaders. Senate as a continuing body, House newly constituted every two years.

Checks and Balances

lComplete separation from executive

–separate elections, separate fixed term length

–no simultaneous service (prevents a parliamentary-style system) for members of Congress and the executive branch or courts. However, executive branch members may serve on federal courts.

–limited executive use of prosecutorial power against Congress (immunity). William Jefferson case.

–Check each other: impeachment power, legislative veto and executive veto power.

POWERS OF CONGRESS: Enumerated

lMany were specific responses to Confederation Congress’s problems.

lCoin money, establish roads and post offices, grant patents, create the court system, raise and support armies, etc.

l“Power of the purse” is central. Taxing and spending.

l“regulate commerce . . . among the several states”

–19^th Century definition: Narrowly interpreted, inter-state/intra-state commerce.

–Post-New Deal definition: broad, basis for Civil Rights Act of 1964 and many other laws. US v. Lopez (1995) and United States v. Morrison (2000) signify a new trend.

POWERS OF CONGRESS: Implied and Shared

lImplied powers

–Elastic clause: “necessary and proper” McCulloch vs. Maryland (1819)

lShared powers

–judicial selection

–confirmation of executive appointments

–creating and funding executive branch agencies

–foreign policy/defense; Congress declares war and “raises and supports armies,” but President is commander-in-chief. Ratify treaties.

LIMITATIONS ON CONGRESSIONAL POWER

lIn the original text of Constitution: no ex post facto laws, bills of attainder, or grants of title of nobility.

lThe Bill of Rights and other constitutional provisions serve as important checks on the scope of legislation:

–examples of Federal laws struck down as unconstitutional: original Federal Election Campaign Act (1976), anti-flag burning law (1990), Line-Item Veto Law (1998), Religious Freedom Restoration Act (1997), Violence Against Women Act (2000).

lSeparation of powers: “dual security” Other branches and the states.