The Constitution: Key The Constitution: Key ConceptsConcepts

How were the following How were the following weaknesses of the Articles of weaknesses of the Articles of

Confederation corrected by the Confederation corrected by the Constitution?Constitution? States have most of the power. The national States have most of the power. The national

government has little.government has little. No executive officer to carry out the laws of CongressNo executive officer to carry out the laws of Congress No national courts. Only state courts existNo national courts. Only state courts exist Congress is responsible to the states.Congress is responsible to the states. 9 out of 13 states have to approve a law before it can 9 out of 13 states have to approve a law before it can

go into effect.go into effect. Congress has no power to tax.Congress has no power to tax. Congress can not regulate the trade among the statesCongress can not regulate the trade among the states Each state coins its own money. There is no national Each state coins its own money. There is no national

currencycurrency

Key ConceptsKey Concepts

RepublicRepublic – – form of government: form of government: indirect, representative democracyindirect, representative democracy

Popular Sovereignty-Popular Sovereignty- Power of the Power of the people (“We the people”)people (“We the people”)

Separation of Powers-Separation of Powers- 3 Branches 3 Branches Checks and Balances-Checks and Balances- The power The power

of one branch is limited by the of one branch is limited by the powers given to the other two powers given to the other two – Veto, Impeachment, Veto, Impeachment,

FederalismFederalism-Power is divided and -Power is divided and shared between national and state shared between national and state governmentsgovernments

““A Living Document”A Living Document”

Flexible, adaptable to survive for so Flexible, adaptable to survive for so long!long!

Ways it is flexible:Ways it is flexible:– AmendmentAmendment– Elastic ClauseElastic Clause– Judicial InterpretationJudicial Interpretation

AmendmentAmendment

Only done 28 times (One-18Only done 28 times (One-18thth-Prohibiton was -Prohibiton was repealed)repealed)

2 basic ways:2 basic ways:– 2/3rds vote of each house of Congress 2/3rds vote of each house of Congress

and then ratified by 3/4and then ratified by 3/4thth of state of state legislatureslegislatures

– Never tried-Never tried- 2/3rds of state legislatures 2/3rds of state legislatures call for a constitutional conventioncall for a constitutional convention

Note: Every section can be amended- except one: Note: Every section can be amended- except one: States must be equal in Senate (Great Compromise)States must be equal in Senate (Great Compromise)

Elastic ClauseElastic Clause

Article 1 Section 8 Clause 18 Article 1 Section 8 Clause 18 (Many scholars (Many scholars say most important provision of Constitution)say most important provision of Constitution)

Gives Congress the power to make all Gives Congress the power to make all ““necessary and proper”necessary and proper” laws to carry out laws to carry out its delegated powers.its delegated powers.

““elastic”-elastic”- it stretches the authority of it stretches the authority of CongressCongress

Thus, gives Thus, gives ““implied”implied” powers powers– Child Labor, Military Academies, War Powers Act Child Labor, Military Academies, War Powers Act

1973 1973

Judicial InterpretationJudicial Interpretation

Judicial Review-Judicial Review- power of courts to power of courts to declare law unconstitutional. (declare law unconstitutional. (Not in Not in Constitution, established by court Constitution, established by court case)case)

Strict v Loose Construction Strict v Loose Construction (Interpretation)- (Interpretation)- When language is ambiguous, unclear, When language is ambiguous, unclear,

how does a judge interpret it?how does a judge interpret it?

Strict InterpretationStrict Interpretation

Literal, word for word interpretation-Literal, word for word interpretation- Only the meaning of words in the text Only the meaning of words in the text

is consideredis considered The purpose or intent of the lawmaker The purpose or intent of the lawmaker

is not consideredis not considered Favored by those who want to limit Favored by those who want to limit

power of National Govt- it can do only power of National Govt- it can do only what it specifically says in what it specifically says in Constitution.Constitution.

Loose or Liberal Loose or Liberal ConstructionConstruction

Not limited by the wordsNot limited by the words Considers the purpose and intent of Considers the purpose and intent of

the lawmaker.the lawmaker. Reads “between the lines”Reads “between the lines” Favored by those who want to Favored by those who want to

increase power of National increase power of National Government Government

Examples of Strict v. LooseExamples of Strict v. Loose

Biblical interpretation. Biblical interpretation.

22ndnd Amendment: Amendment: “A well regulated “A well regulated Militia, being necessary to the Militia, being necessary to the security of a free State, the right of security of a free State, the right of the people to keep and bear Arms, the people to keep and bear Arms, shall not be infringed.”shall not be infringed.”

Strict v. Loose: Ongoing Strict v. Loose: Ongoing DebateDebate

Judicial Restraint v Judicial ActivismJudicial Restraint v Judicial Activism Judicial Restraint: Judicial Restraint:

– Judges should use strict interpretationJudges should use strict interpretation– restrain from using judicial reviewrestrain from using judicial review– Defer to the judgment of elected branchesDefer to the judgment of elected branches– Courts hould have limited role in making Courts hould have limited role in making

policy policy – Favored by Conservatives or RepublicansFavored by Conservatives or Republicans

Strict v. LooseStrict v. Loose

Judicial ActivismJudicial Activism– Judges should use loose constructionJudges should use loose construction– Use Judicial ReviewUse Judicial Review– Courts should have an active role in Courts should have an active role in

public policy for social change and public policy for social change and betterment.betterment.

– Favored by liberals, or DemocratsFavored by liberals, or Democrats

Strict v Loose ExamplesStrict v Loose Examples

Yesterday’s court case on “Don’t Ask, Yesterday’s court case on “Don’t Ask, Don’t Tell”Don’t Tell”

Roe v. Wade: Roe v. Wade: Strict- Court went Strict- Court went around the will of elected officials by around the will of elected officials by reading new rights into the reading new rights into the ConstitutionConstitution

Liberals- Constitution guarantees the Liberals- Constitution guarantees the right to an abortion as part of its right right to an abortion as part of its right to privacyto privacy