Chapter 2

 

Chapter Overview

 

The US constitution, adopted in 1789, is the worldís oldest. It has lasted because it is adaptable and flexible. It both grants and limits power. The constitutionís separation of powers distributes authority among three branches of government: the legislative, executive, and judicial. Checks and balances limit the power of each branch.

 

The Constitution of the United States grants and limits powers. The framers established a government by ordinary people. They did not anticipate Americans would be so virtuous and civic-minded that they could be trusted to operate a government without checks and balances. The framers were suspicious of people, especially of those having political power, so they separated and distributed the powers of the newly created national government in a variety of ways.

The framers were also concerned with creating a national government strong enough to solve national problems. Thus, they gave the national government substantial grants of power, but these grants were made with such broad strokes that it has been possible for the constitutional system to remain flexible and adapt to changing conditions.

Political parties my sometimes overcome the separation of powers, especially if the same party controls both houses of Congress and the presidency. Typically, this is not the case, however, and a divided government intensifies checks and balances. Presidential power, which has increased over time, has sometimes been able to overcome some restraints imposed by the constitution.

Judicial review is the power of the courts to strike down acts of Congress, the executive branch, and the states as unconstitutional. It is one of the unique features of the U. S. constitutional system.

 

Although the American governmental system has its roots in British traditions, our separation of and checks-and-balances systems differ sharply from the British system of concentrated power. It is also different because our courts have this power of judicial review. The Supreme Courtís power of judicial review was established in the 1803 case of Marbury v. Madison.

The constitutional system has been modified over time, adapting to new conditions through congressional elaboration, presidential practices, customs and usages, and judicial interpretation.

Although adaptable, the Constitution itself needs to be altered from time to time, and the document provides a procedure for its own amendment. An amendment must be both proposed and ratified: proposed by either a two-thirds vote in each chamber of Congress or by a national convention called by Congress on petition of the legislatures in two-thirds of the states; ratified either by the legislatures in three-fourths of the states or by specially called ratifying conventions in three-fourths of the states.

The Constitution has been formally amended 27 times. The usual method has been proposal by a two-thirds vote in both houses of Congress and ratification by the legislatures in three-fourths of the states.

The Equal Rights Amendment (ERA) was first introduced in 1923 but did not garner significant support until the 1960s. The National Organization for Women, founded in 1966, focused on passage of the ERA, securing the submission of the amendment to the states by Congress in 1972. However, early overwhelming bipartisan support for the ERA ebbed in the 1970s, and in 1980 the Republican Party adopted a stance of neutrality. Ratification by state legislatures slowed to a trickle as the 1979 time limit on the amendment ran out. Although the deadline was extended to 1982, it was still three state legislatures short of ratification when it expired.

 

 

Definitions:

 

Natural law: Godís or natureís law that defines right from wrong and is higher than human law.

Separation of power: constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making the law, the executive applying and enforcing the law, and the judicial interpreting the law.

Checks and balances: constitutional grant of powers that enables each of the 3 branches of government to check some acts of the others and therefore ensure that no branch can dominate.

Divided government: governance divided between the parties, especially when one holds the presidency and the other controls one of both houses of Congress.

Direct primary: election in which voters chose party nominees.

Initiative: procedure whereby a certain number of voters may, by petition, propose a law or constitutional amendment and have it submitted to the voters.

Referendum: procedure for submitting to popular vote measures passed by the legislature or proposed amendments to a state constitution.

Recall: procedure for submitting to popular vote the removal of officials from office before the end of their term.

Judicial review: the power of a court to refuse to enforce a law or a government regulation that in the opinion of the judges conflicts with the US constitution or, in a state court, the state constitution.

Writ of mandamus: court order direction an official to perform an official duty.

Impeachment: formal accusation against a public official, the firs step in removal from office.

Executive order: directive issued by a president of governor that has the force of law.

Executive privilege: the power to keep executive communications confidential, especially if they relate to national security.

Impoundment: presidential refusal to allow an agency to spend funds authorized and appropriated by Congress.

 

 

Sample tests:

 

  1. In The Federalist #51, Madison wrote that "auxiliary precautions" should be taken to protect the rights of minorities against majority rule.

    True

 

  1. The president may remove justices and all other federal judges with the approval of the House of Representatives.

    False

 

  1. One of the greatest modifications in our system of checks and balances has been the concentration of power in the hands of the president and his staff.

    True

 

  1. The power of judicial review-the power of a court to strike down a law or a government regulation that in the opinion of the judges conflicts with the Constitution-was claimed by judges immediately after the nation was created.

    False

 

  1. The case of Marbury v Madison was essentially created by the desire of one political party to hang on to power by controlling the judiciary.

    True

 

  1. Chief Justice Roger Taney wrote the opinion in the case of Marbury v. Madison, which asserted the right of judicial review.

    False

 

  1. Through basic statutes and historical practices of Congress, presidential practices, and decisions of the Supreme Court our constitutional system is kept up to date.

    True

 

  1. The wording "High Crimes and Misdemeanors" as it relates to impeachment and conviction is clearly explained in the Constitution.

    False

 

  1. Presidential practices during times of crisis or war have established important precedents and built the power and influence of the office of president.

    True

 

  1. Over the last 200 years the Supreme Court has failed to change its interpretation of the Constitution because of social and economic changes.

    False

 

  1. Presidential veto power extends to constitutional amendments but the Congress may override the veto.

    False

 

  1. The Twenty-Seventh Amendment which limits the power of Congress to set members' salaries took over 200 years to be ratified.

    True

 

  1. Regarding the second method for proposing amendments-a convention called by Congress at the request of the legislatures in two-thirds of the states-scholars agree that Congress could limit what this convention could propose.

    False

 

  1. Opponents to the Equal Rights Amendment argued that women would be subject to the military draft and assigned to combat duty.

    True

 

  1. The ERA ratification battle clearly demonstrated that the framers intended that amending the Constitution should be fairly easy.

    False

 

 

 

  1. Which of the following statements is incorrect regarding the Constitution?

    It establishes the United States as a Christian nation.

 

  1. In order to solve the conflict between desiring a stronger national government and avoiding central control, the framers established a system of _____________.

    federalism

 

  1. Regarding checks and balances, which of the following statements is correct?

    The Senate and the House of Representatives have an absolute veto over each other in the enactment of laws, because both houses must approve bills.

 

  1. The rise of national political parties, expansion of the electorate, changes in technology and the growth of presidential power are ways the system of checks and balances have been ________.

    modified

 

  1. A referendum is:

    a method by which voters can reconsider actions of the legislature.

 

  1. The press, wealthy individuals and religious leaders have benefited in their efforts to gain more influence over government through:

    changes in technology.

 

  1. Which of the following statements is incorrect regarding judicial review?

    The Constitution clearly states who should have the final word in disputes that might arise over its meaning.

 

  1. Justice Thurgood Marshall believed that the meaning of the Constitution:

    changes over time because it is a "living document."

 

  1. In Marbury v Madison, Chief Justice John Marshall refused to issue a writ of madamus because:

    the Judiciary Act of 1789 is contrary to Article III of the Constitution.

 

  1. Scholars argue that Marshall's decision in Marbury v. Madison was brilliant because:

    it gained the power to declare laws passed by Congress unconstitutional for the Court.

 

  1. Which of the following is not found in Article I of the Constitution?

    A person convicted on impeachment charges may not be subject to trial, judgment, and punishment according to the law.

 

  1. The power to keep executive communications confidential, especially if they relate to national security is:

    executive privilege.

 

  1. Judicial interpretation of the Constitution by the Supreme Court has:

    saved the document from frequent formal amendment.

 

  1. How does our nation have a constitutional government when the Constitution is constantly being changed by interpretation and change by informal methods?

    It is an expression of basic personal liberties and an instrument of government.

 

  1. Which of the following amendments took away from the electorate the right to elect a person to the office of president for more than two full terms?

    Twenty-Second

 

  1. Which of the following amendments was not intended to limit the power of state governments?

    Eleventh

 

  1. A convention called by Congress at the request of the legislatures in two-thirds of the states is:

    a method for proposing amendments.

 

  1. The Supreme Court has said that ratification must take place within ___________.

    a reasonable time

 

  1. The Twenty-Seventh Amendment was ratified as the result of:

    Correct: a student writing a paper at the University of Texas.

 

  1. Which of the following is true regarding the proposed Equal Rights Amendment?

    It demonstrated that the framers intended the amending process to be difficult.

 

 

Timeline: the living constitution page 28

FYI: the exercises of checks and balances 1789-2003 page 29

Picture of separation of checks and balances: page 30

The European Union: page32

Changing face of US politics: Thurgood Marshall page 34

Marbury versus Madison: page 35

British and American systems a study in contrasts page 37

How should the constitution be interpreted? Page 38

Thinking it through: justice Scalia and justice Brennan on the constitution† page 39

FYI: amending power and how it has been used: the different methods for amendments page 40 and 41

Time taken to ratify different amendments page 41 bottom

People and politics: Gregory Watson page 43