The Constitution: Key Concepts

How were the following weaknesses of the Articles of Confederation corrected by the Constitution? States have most of the power. The national government has little. No executive officer to carry out the laws of Congress No national courts. Only state courts exist Congress is responsible to the states. 9 out of 13 states have to approve a law before it can go into effect. Congress has no power to tax. Congress can not regulate the trade among the states Each state coins its own money. There is no national currency

Key Concepts Republic – form of government: indirect, representative democracy Popular Sovereignty- Power of the people (“We the people”) Separation of Powers- 3 Branches Checks and Balances- The power of one branch is limited by the powers given to the other two Veto, Impeachment,

Federalism-Power is divided and shared between national and state governments

“A Living Document” Flexible, adaptable to survive for so long! Ways it is flexible: Amendment Elastic Clause Judicial Interpretation

Amendment Only done 28 times (One-18th-Prohibiton was repealed) 2 basic ways: 2/3rds vote of each house of Congress and then ratified by 3/4th of state legislatures Never tried- 2/3rds of state legislatures call for a constitutional convention Note: Every section can be amended- except one: States must be equal in Senate (Great Compromise)

Elastic Clause Article 1 Section 8 Clause 18 (Many scholars say most important provision of Constitution) Gives Congress the power to make all “necessary and proper” laws to carry out its delegated powers. “elastic”- it stretches the authority of Congress Thus, gives “implied” powers Child Labor, Military Academies, War Powers Act 1973

Judicial Interpretation Judicial Review- power of courts to declare law unconstitutional. (Not in Constitution, established by court case) Strict v Loose Construction (Interpretation)- When language is ambiguous, unclear, how does a judge interpret it?

Strict Interpretation Literal, word for word interpretation- Only the meaning of words in the text is considered The purpose or intent of the lawmaker is not considered Favored by those who want to limit power of National Govt- it can do only what it specifically says in Constitution.

Loose or Liberal Construction Not limited by the words Considers the purpose and intent of the lawmaker. Reads “between the lines” Favored by those who want to increase power of National Government

Examples of Strict v. Loose Biblical interpretation. 2nd Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Strict v. Loose: Ongoing Debate Judicial Restraint v Judicial Activism Judicial Restraint: Judges should use strict interpretation restrain from using judicial review Defer to the judgment of elected branches Courts hould have limited role in making policy Favored by Conservatives or Republicans

Strict v. Loose Judicial Activism Judges should use loose construction Use Judicial Review Courts should have an active role in public policy for social change and betterment. Favored by liberals, or Democrats

Strict v Loose Examples Yesterday’s court case on “Don’t Ask, Don’t Tell” Roe v. Wade: Strict- Court went around the will of elected officials by reading new rights into the Constitution Liberals- Constitution guarantees the right to an abortion as part of its right to privacy