POWERS OF THE FEDERAL GOVERNMENT UNDER THE Us constitution Taxes, Duties, Imposts and Excises (taxes on commerce and imports) – same throughout the US Coin money and regulate its value, prosecute counterfeiting, establish bankruptcy law Regulation of international and interstate commerce Pay debts and borrow money This is what gives us a national economic system instead of separate state economies

POWERS OF THE FEDERAL GOVERNMENT UNDER THE US CONSTITUTION Provide for the common defense and the general welfare National army and navy with President as Commander-in-Chief Call forth militia for national defense as necessary Treaties, negotiations with other countries This is what gives us a national foreign and military policy instead of separate state policies

“The General Welfare” Well-being of society as a whole Congress has the power “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers” The national government essentially gets to decide the extent of its own powers Checked and balanced among legislative, executive and judicial branches, and between national and state governments

The Constitution Separation of Powers: Each branch of government has its own distinct powers, and the branches are generally required to cooperate to accomplish anything. Each branch is chosen in a different way. (Welch, p. 43). Checks and Balances: Each branch has some control over the other two. This prevents any branch from abusing its power. (Diagram on Welch, p. 44)

THE CONSTITUTION: Structure and Power of Government Article I: Legislative Branch House of Representatives Senate Article II: Executive Branch President, Vice President, Electoral College Executive Departments Article III: Judicial Branch Supreme Court “inferior Courts”

Checks and balances Legislative > Executive Executive > Legislative Executive > Judicial Legislative > Judicial Judicial > Executive and Legislative

Checks and Balances Legislative → Executive Congress passes laws. Congressional oversight: Supervision of executive branch activities. Congress must approve spending (appropriations) and can refuse to fund government activities. Congress can override the President’s veto (2/3 in each House). Senate confirms senior presidential appointees. The Senate must ratify treaties (2/3 vote) and confirm nominations (majority vote) – “advice and consent.” Impeachment (House) and conviction (Senate) can remove an official from office. Congress has the power to declare war although the President is Commander-in-Chief.

Checks and Balances Executive → Legislative President can propose legislation. President can veto legislation passed by Congress. A 2/3 vote in each House is necessary to override the veto. So the President can’t absolutely stop Congress from doing something, but he can make it considerably more difficult. President can refuse to spend money Congress has appropriated. President can call Congress into special session. Vice President is President of the Senate, but has very little actual power in this capacity; votes only to break ties.

Checks and Balances Executive/Legislative → Judicial President appoints judges and Senate confirms them (so they control who gets on the courts in the first place). House may impeach and Senate may convict and remove from office. Judicial → Executive/Legislative Judicial review: Power to declare laws or acts of the other branches unconstitutional. Not specified in the Constitution but asserted by the Court in Marbury v. Madison (1803).

Article IV: Full Faith and Credit Clause Each state must recognize other states’ legally binding acts and contracts. Prior to the Supreme Court’s decision striking down bans on same-sex marriage throughout the country in June 2015, many states, including SC, had laws barring recognition of same-sex marriages legally performed in other states. This was probably a violation of the Full Faith and Credit Clause, although that was never tested in court. The legalization of same-sex marriage was based on the Equal Protection Clause of the Fourteenth Amendment.

Article V: Amendment Process Proposal + Ratification: Proposal An amendment is passed by 2/3 vote of each House of Congress OR A constitutional convention may be called by the legislatures of 2/3 of the states (has not happened since 1787) Ratification (method chosen by Congress) After being proposed, an amendment must be ratified by the legislatures of ¾ of the states By ratifying conventions in ¾ of the states (21st Amendment)

Amendment Process Proposal ratification Congress Constitutional Convention State Legislatures State ratifying conventions

Bill of Rights Amendments I-X. Added to the Constitution in 1791 in order to gain support from the Anti-Federalists, who believed that the new Constitution gave the national government too much power. North Carolina and Rhode Island refused to ratify the Constitution without the promise that a Bill of Rights would be included. Seventeen additional amendments have been ratified since 1795. The 18th Amendment (prohibition of alcohol) was repealed by the 21st Amendment.

The Federalist Papers A series of essays arguing in favor of the ratification of the Constitution, written by Alexander Hamilton, John Jay and James Madison. Published as letters to the editor in newspapers to persuade the states to ratify, particularly New York. Madison authored Federalist #10 and #51.

Federalist #10 “[A] well-constructed Union” will “break and control the violence of faction.” Faction: A group acting in its own “common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.” Political parties Economic classes “Special interest groups”

Federalist #10 “Curing the Mischiefs of Faction”: Remove the cause or control the effects. Remove the cause: Destroy liberty “Worse than the disease” Remove the cause: Give everyone the same opinions, passions and interests “As impracticable as the first would be unwise.” Each person will form his own opinions and exercise his own talents. This leads to different degrees and kinds of property. Unequal distribution of property is the primary cause of faction (different economic classes).

Federalist #10 Controlling the effects of faction The republican principle: A faction may be outvoted if they’re not the majority. If they are a majority, either they must be prevented from developing the same interests, or prevented from being able to use this interest to “carry into effect schemes of oppression.” Democracy is not the answer. It’s easy for factions to form and difficult to check/control them.

Federalist #10 Republican form of government is the answer: The people elect their representatives. Madison believes that the elected representatives may discern the public interest better than the citizens themselves. A republic can govern a larger and more diverse territory than a direct democracy where the citizens participate in decision-making themselves. It is more difficult for factions to form in a larger republic.

Federalist #10 Each representative should serve a small enough number of people to be familiar with their needs, but a large enough number to promote diversity of interests and prevent factions from forming. Division of power between the national government and the states means that even if a faction takes power in one state, it won’t necessarily spread to the national government.

Federalist #51 Separation of powers and checks and balances: Answer to those who argued that the new Constitution would give the national government too much power “Each department should have a will of its own” and should not choose each other (exception for the judiciary). Branches of government are separately chosen: House of Representatives: Popularly elected Senate: Elected by state legislatures President and Vice President: Chosen by Electoral College Judiciary: Appointed by President, confirmed by Senate.

Federalist #51 Different branches should not control each other’s salaries. The President’s salary cannot be changed during his term of office (it can only go into effect at the beginning of the next term). A federal judge’s salary cannot be reduced during his term of office. Why is this important?

Federalist #51 “Resist encroachments of the others” (branches) “Ambition must be made to counteract ambition.” An ambitious (power-seeking) Congress will check the power of an ambitious President, and vice versa. “But what is government but the greatest of all reflections on human nature?”

Federalist #51 “If men were angels, no government would be necessary.” (Why not?) “If angels were to govern men, neither external nor internal controls on government would be necessary.” (Why not?) “In framing a government which is to be administered by men over men…enable the government to control the governed, and… oblige it to control itself.” (Enough power to do its job but not enough to abuse its power.)

Federalist #51 “In republican government, the legislative authority necessarily predominates.” “Divide the legislature into different branches” (House and Senate) – this also settles the dispute between large and small states as to how seats in Congress should be apportioned (population vs. equality of states). Presidential veto is not absolute; an absolute veto might be either abused or not used.

Federalist #51 Power is divided not only among the branches of the national government, but also between the national government and the states. They will check and balance each other. Back to factions: In a monarchy, the sovereign has an “independent will” which can prevent factions from violating the rights of others; the republican system of government plays this role under the Constitution. A republic can serve a larger and more diverse territory, less danger that factions will form. “Republican cause” and “federal principle.”

COMPARING THE BILL OF RIGHTS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Equality of Persons Addressed by the Declaration of Independence (“All men are created equal”) and by the 14th Amendment (citizenship and equal protection of the laws). Not addressed by the ten original amendments to the Constitution (the B of R is only the first ten). UDHR Article I: “All human beings are born free and equal in dignity and rights.” UDHR Article II: Condemns discrimination by race, color, sex, language, religion, politics, national origin, property, birth

PROHIBITION OF sLAVERY Explicitly permitted by the original US Constitution, prohibited by the 13th Amendment. UDHR: Prohibited by Article 4.

Punishment of Prisoners USC 8th Amendment prohibits cruel and unusual punishment. UDHR Article 5 prohibits torture, cruel, inhuman or degrading treatment or punishment.

Equal Protection of the Laws Not part of the original Constitution, guaranteed by the 14th Amendment. UDHR Article 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law…”

Persons Accused of Crimes Articles IV-VIII of the Constitution guarantee the steps in due process of law: protection against unreasonable search and seizure, search only with a warrant and probable cause, protections against self-incrimination and double jeopardy, right to a speedy and public trial by a jury of one’s peers, right to counsel, no excessive bail or cruel and unusual punishment.

Persons Accused of Crimes UDHR Articles 8-10: Protection against arbitrary arrest, fair and public hearing by independent and impartial tribunal, presumption of innocence, guarantees necessary for defense.

Freedom of Religion USC First Amendment guarantees free exercise of religion. UDHR Article 18 guarantees freedom of thought, conscience and religion, right to teach, practice, worship and observance of one’s religion.

Right to Privacy Not specified by the Constitution but asserted by the US Supreme Court in a series of decisions beginning in the 1960’s. UDHR Article 12 protects against arbitrary interference with one’s privacy.

Freedom of Expression USC First Amendment guarantees the right to freedom of speech and freedom of the press. UDHR Article 19 asserts right to freedom of opinion and expression, access to information.

Freedom of Assembly USC First Amendment and UDHR Article 20 both protect freedom of assembly. PROTECTION OF COPYRIGHT: Protection of intellectual property (your creation) is a power given to Congress in Article I; protected by Article 27 of UDHR.

Participation in Government The right to vote is not guaranteed by the original Constitution or the Bill of Rights. It is implied by later Amendments barring discrimination in voting on the basis of race, sex, age (18 or older) and abolishing the poll tax. UDHR Article 21 protects right to participate in government, universal and equal suffrage, right to public service.

What’s NOT in the Bill of Rights but IS in the UDHR? Freedom of movement and emigration/immigration Freedom to seek asylum from persecution Right to marriage and founding a family Equal rights of men and women in marriage Protection of the family as a unit of society Ownership of property without arbitrary deprivation

What’s NOT in the Bill of Rights but IS in the UDHR? Social security and economic, social and cultural rights Right to work, free choice of employment, just and favorable conditions of work, protection against unemployment, equal pay for equal work. Just and favorable remuneration (living wage) Right to form and join trade unions Rest and leisure, limitation of working hours, periodic paid holidays

What’s NOT in the Bill of Rights but IS in the UDHR? Standard of living adequate for health and well-being of himself and his family Food, clothing, housing, medical care and necessary social services Right to security in event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood… Motherhood and childhood entitled to special care and assistance, children have equal rights whether or not born in wedlock.

What’s NOT in the Bill of Rights but IS in the UDHR? Education Free and compulsory elementary education Technical and professional education available Higher education equally accessible to all on basis of merit Education directed to full development of human personality, respect for human rights and freedoms, understanding, tolerance and friendship among all nations, racial and religious groups, maintenance of peace. Parents have right to choose type of education.

What’s NOT in the Bill of Rights but IS in the UDHR? Right to participate in cultural life of community Right to social and international order where these rights and freedoms can be realized Statement of duties and obligations to the community

What’s NOT in the UDHR but IS in the Bill of Rights? 9th Amendment: The list of rights enumerated by the Constitution is not exhaustive, that is, people can be assumed to have rights not listed in the B of R. 10th Amendment: General statement that powers not granted to the national government are reserved to states and people. 2nd Amendment: There’s nothing about guns in the UDHR. The UDHR does not assume a right to keep and bear arms.

Positive Rights vs. Negative Rights The Constitution prohibits the government from interfering with certain rights (religion, press, keep and bear arms). It assumes that these rights exist. The UDHR asserts that people have certain rights. Negative rights: The government and others are restrained from interfering with your rights (most of the Bill of Rights). Positive rights: You have the right to something (health care, education, housing) What difference does this make in terms of the role of government in protecting or providing rights?