The Constitution of the United States Our 5th Basic Value

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The Constitution of the United States Our 5th
Basic Value
Order Freedom Equality Democracy
THE RULE OF LAW
American National Government
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The Rule of Law Government cannot act
legitimately unless it acts within the law ?
Rights Immunities
The Flip Side Policy Choice ? Statutes,
Regulations, etc.

• The Duel Functions of Law
• Regulate the Actions of Individuals ? Order
  Equality

AND not or (2) Regulate the Actions of
Government ? Freedom --
Questions of Enforcement?
Saxon England The Law of the Land (9th-11th
cent.) Even the Nobility was subject to the
law (local customary practice) baronial courts
kingship The fate of Ethelred the Unready
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William the Conqueror (11th-12th cent.) The
Kings Peace
Henry II (13th cent.) The Kings Justice
The Kings Justices Circuit Courts Real
Social Disputes Local Law Juries Evil Laws
and Customs Written Rulings ? Yearbooks ?
Treatises ? Common Law Principles
Abstractions Standardization of Diverse Local
Law
Modern Areas of Law Property, Contracts,
Trusts, Wills, and Common Crimes, etc.

• Magna Carte (1215) King John the Barons
• The Autonomy of the Catholic Church
• Regular Great Councils to Consent to New Taxes
• Limitations on Kings Common Law Taxing
  Authority
• Trial by Jury of Ones Peers

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The Kings Peace Kings Courts Common Law
Magna Carte ?
? Using Law to Limit Royal Authority The Rule of
Law
? The Traditional Rights of English Subjects
(1) Representation in Government
(2) Consent to Taxes
(3) The Rule of Law
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Traditional Rights of Colonial Subjects
Colonial Charters Social Contract Theory
Colonial Practical Government Coping with
Royal Governors -- Coping with British
Imperial Economic Policies
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Traditional Rights of Colonial Subjects
Continental Congress Declaration of
Independence Lockean Natural Rights a Bill of
Particulars

• The Articles of Confederation (1777 1781-1789)
• State-Focused Politics
• Little National Sovereign Authority Tax
  Regulate
• Post-War Troubles
• The Articles Have Failed! ? Federalist Faction
• The Articles Are Working! ? Anti-Federalist
  Faction

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CONSTITUTIONAL CONVENTION (May-Sept. 1787)

• Building on Two Intellectual Traditions
• The Rule of Law Legal Political Rights
• Social Contract Theory In Action

• Building within the Practical Political
  Realities
• Confronting State Political Power
• European History of Republican Governments
• Coping with unaccountable, unresponsive Royal
  Governors
• The Real Question ? Will it work? Will it fly?

Goal Limited Representative Government! Questio
n How?
James Madison, Federalist Paper 51 (Janda
Appendix)
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THE POLITICAL STRATEGY OF THE FRAMERS

• Substantive Limits of Authority shall not no
  law
• Ex Post Facto Clause
• Bills of Attainder Clause
• Tax Uniformity Clause
• Port Preference Clause
• Treason defined, legal proof required, limits
  on punishments
• Bill of Rights (1791)

Substantive Limits are NOT ENOUGH

• Practical Political Power Ex Post Facto
  Powerless Courts
• The Framers Lessons from History Fear of
  Concentrated Power
• Madison If men were angels

• The New Science of Politics Virtue vs.
  Ambition
• We cannot count on Virtue!
• Pitting Ambition against Ambition

• Forcing Self-Interested Politicians to Bargain
  Compromise

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THE POLITICAL STRATEGY OF THE FRAMERS

• Procedural Limits on Authority
• Limiting Governments power by limiting its
  ability to Create Law!
• Constitutional Structure and Process
• The Madisonian Model
• Separation of Powers (Montesquieu)
• Checks and Balances

• SEPARATION OF POWERS
• Federalism State (Semi-) Autonomy Layer
  Cake vs. Marble Cake Theories (Janda, ch. 4)

• Three core functions of government
• Make Law Legislative Branch
• Execute Law Executive Branch
• Adjudicate the execution of Law Judicial Branch

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THE POLITICAL STRATEGY OF THE FRAMERS CHECKS AND
BALANCES

• Forms of Election Representation Bicameral
  Congress
• House Local Interests or The People 2 year
  terms
• Senate State Legislatures or Local Elites
  1912 Direct Popular Elections Statewide
  Interests 6 year terms
• President Electoral College ? Local Political
  Elite

• Constitutional Requirement for Concurrence
• They have to agree ? Ambition Against Ambition
• Self-Interested Politicians Forced to Bargain
  Compromise in Order to Get Anything at All!
• If they cannot agree, NOTHING CHANGES!
• GRIDLOCK IS GOOD!!

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THE POLITICAL STRATEGY OF THE FRAMERS CHECKS AND
BALANCES
SYSTAM OF SHARED AUTHORITY More Constitutional
Procedure

• Qualified Presidential Veto Presentment Clauses
  President Signs or Vetoes with 2/3
  Congressional Override

• President is Commander-in-Chief But Congress
  Raises, Disciplines and Pays for the Military!

• Congresss Power of the Purse Taxation

• Foreign Policy Senate confirmation of
  Ambassadors 2/3 Vote to Ratify Treaties

• Enforcement of Law First by Executive Branch,
  but resort to Courts on issues of legality
  compliance Congress rewriting a statute to
  change a court interpretation interpretation of
  constitutional provisions. Life-Tenure

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• THE POLITICAL STRATEGY OF THE FRAMERS
• CHECKS AND BALANCES
• PRESIDENT-SENATE SHARED APPOINTMENT POWERS
• Senior Government Administrative Leadership
  Cabinet, Sub-Cabinet, etc.
• Independent Regulatory Agencies created by
  Congress Fed Reserve Board, FCC, FAA, FTC, FEC,
  etc.
• Military Officer Corps
• Diplomatic Corps
• Federal Court Judges

? No One Can Do Much without the Cooperation of
the Others
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THE POLITICAL STRATEGY OF THE FRAMERS CHECKS AND
BALANCES
? No One Can Do Much without the cooperation of
the Others

• COURTS Totally Reactive
• PRESIDENT Pardon Crimes Against the U.S.
• CONGRESS -- Adjourn

ON GRIDLOCK

• Gridlock as clear evidence
• Efficiency or Effectiveness?
• Services or Representation?
• How to make Words-on-Paper Real?