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What is popular government?
Majority Rule
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judicial review
power to declare actions unconstitutional
not in constitution, but is accepted as a part of the system
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Since this is a new system of separation of powers, you will want to know what makes it new, that is, how does it differ from the system of separation of powers that existed under the state constitutions?
State constitutions: had legislative supremacy, and a weak executive, powers rarely shared between branches
U.S. constitution: legislative checks and balances, strong executive, powers shared among the 3 branches
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Why did the state constitutions establish systems of legislative supremacy instead of systems of separation of powers despite their
use of separation of powers language? Of course you will want to know that the
states did create systems of legislative supremacy.
States feared that too strong an executive would lead to tyranny.
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What were the six structural features of the executive power in the original state constitutions?
- 1. governors elected by legislature
- 2. governors served 1 year term
- 3. most governors ineligible for reelection
- 4. governors have no veto power
- 5. salaries subject to immediate change
- 6. surrounded by executive council
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How does the executive power under the U.S.
Constitution differ from these six structural features?
- differs because:
- 1. presidents elected by the people
- 2. presidents serve 4 year term
- 3. presidents can run for reelection
- 4. presidents have veto power
- 5. salaries out of immediate hands of congress
- 6. executive council does not exist
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What was the significance of the veto power?
it gave the president 1/6th of Congress's legislative power because to override they would need 2/3 vote in each house, 2/3 is 1/6 more than 1/2
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What were the complementary, yet different, arguments made on behalf of an energetic executive by Madison (Federalist Nos. 47-51) and Hamilton (No. 70)?
Hamilton: Energy in the executive is a leading character in the definition of good government.
Madison: A strong executive is needed for effective separation of powers.
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What was so provocative in 1787 about Hamilton’s statement that "energy in the executive is a leading character in the definition of good government"?
most people were afraid of a strong/energetic executive, but this is needed to fulfill many of the goals/duties of the executive
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What are the ingredients of energy according to Hamilton?
- 1. unity - one person holds executive office
- 2. duration - term length and eligibility for reelection
- 3. adequate provision for its support - presidents salary beyond the immediate hands of congress
- 4. competent powers - commander in chief, veto power, appointment power, pardon power
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What, according to Hamilton, are the ingredients of republican safety?
- 1. due dependence on the people - through elections
- 2. due responsibility - (like with Truman - the buck stops here) enhances unity
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What about the Presidency makes it "America’s
greatest contribution to political science"?
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What is significant about Richard Neustadt's famous statement that we are not a system of separation of powers, but "a system of separate institutions with shared powers"?
significance: shows that the 3 branches don't have to be wholly unconnected with each other since powers themselves aren't separated, the institutions are
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How does that statement relate to the opening three paragraphs of Federalist No. 48?
(not a system of separation of powers, but "a system of separate institutions with shared powers"?)
relation: separation of powers needed to give each branch partial control over the other branches, because the accumulation of power is bad "the degree of separation which the maxim requires . . . can never in practice be duly maintained"
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How does democratic bicameralism differ from mixed regime bicameralism?
in mixed regime bicameralism there is an upper house and a lower house, in democratic bicameralism the two houses are equal
purpose of mixed regime is more class-based interested while democratic is based on state and local interest
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What are the purposes of American democratic
bicameralism?
- 1. protection of state and regional interests
- 2. protection of minority rights
- 3. wisdom
- 4. fidelity to public interest
- 5. stability
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What are the six structural features of American
democratic bicameralism?
- 1. age requirements
- 2. different citizenship requirements
- 3. different sizes of each house
- 4. different constituencies
- 5. different terms of office
- 6. system of staggered elections
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How are those features (of american democratic bicameralism)tied to one or more of the purposes of American democratic bicameralism?
- 1. age leads to experience and wisdom
- 2. citizenship leads to experience which gives rise to wisdom
- 3. house size gives minority rights
- 4. different constituencies makes better people serving and gives wisdom
- 5. terms of office protects minority rights and promotes long term public good
- 6. staggered elections protect minority rights and promote long term public good
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What is the distinction found in Federalist No. 63 and Federalist No. 71 between "temporary error and delusion" and "the cool and deliberate sense of the community"?
the test of democracy is not how quickly the government responds to what the people want
the government should not fall complacent to every sudden breeze if passion or transient impulse
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What is significant about that distinction in comparing
the republicanism of the original state constitutions to the republicanism of
the Constitution of 1787?
original state constitutions had shorter term lengths and therefore could fall to the temporary error and delusion quickly and easily
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How does the federalism of the American Constitution differ from the federalism of
the Articles of Confederation?
Articles: federalism meant a loose association of the states where central authority has no real governing power
Constitution: federalism meant a powerful, central government plus powerful states, kind of a dual citizenship
- - "partly federal, partly national" (old definition of federal)
- - incomplete national government
- - essentially national with certain federal features (old federal)
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what are the three principles of "pre-modern"
federalism that Diamond discusses on p. 128 of The Founding of the Democratic Republic?
- 1. the central federal authority does not govern individual citizens
- 2. the central federal authority does not deal with the fundamental political problems of the individual governments
- 3. each individual government has an equal vote in the central federal authority
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We have suggested that the Constitution establishes "an essentially national
government with certain federal features." What are the four federal features of the American Constitution discussed in class?
- 1. the existence of powerful states
- 2. equal representation
- 3. state by state ratification of constitutional amendments
- 4. state by state election of president
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What do these federal features (4) suggest about how Americans are organized politically
in the United States?
we are much more federal than people realize, we always do things in state and local communities, and never come together as a national constituency on anything.
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In considering the division of power under the Constitution between the national
government and the states, what are the three major constitutional provisions
that serve as a starting point for understanding this division?
- 1. the general welfare clause
- 2. interstate commerce clause
- 3. necessary and proper clause
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What are the three major interpretations of the general welfare clause of the Constitution? What is significant about these different interpretations? Which of these interpretations has prevailed in constitutional
law?
- 1st - madison, jefferson, goldwater - means nothing - mere statement of congress power to tax
- 2nd - hamilton, washington, joseph story - congress has power to collect taxes to provide stuff for the general welfare
- 3rd - ww crosskey - congress has the power to legislate on behalf of the general welfare
- significance: each one gives congress a different amount of power, and deals with what congress can and can't do
- 2nd usually prevails in constitutional law
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How have certain Constitutional amendments affected the division of power between
the national government and the states? Note particularly Section 2 of the 13th
amendment and Section 5 of the 14th amendment and similar sections
to some subsequent amendments. These sections augment the power of Congress,
and, therefore, the power of the federal government.
13, 14, 15, 19, 23, 24 all give congress the power to make legislation regarded what the amendment is about. This gives more power to the government, (mostly congress) and expands the legislative branch's power
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What are the doctrines of strict construction and loose construction? What is at stake in the debate between the advocates of these two different positions?
strict construction: argues that national government can do only things expressly stated in the constitution (jefferson and madison)
loose construction: argues that national government is a government of expressed plus implied powers.(hamilton)
loose construction gives the federal government more power/makes it stronger
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What did the Supreme Court decide in the famous 1819 case of McCulloch v. Maryland? And why is this decision important? See Diamond, pp. 134-35 and the even better discussion in the Moodle essay.
Contrary to what some students take away from reading Diamond's discussion of McCulloch v. Maryland, please note that the case itself has nothing to do with interstate commerce.
(strict construction v loose construction controversy and deals with necessary and proper clause) significance: establishes in constitutional law the doctrine of loose construction
decision: upheld constitutionality of the Bank of the United States
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Why, according to your instructor, does the 10th amendment to the Constitution mean nothing?
because to understand what powers are retained to the states or to the people, you must first know which ones are given to the federal government.
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What is the doctrine of dual federalism? How does that doctrine differ from the position of the Marshall Court in McCulloch v. Maryland? See Diamond, pp. 139-40.
dual federalism: the powers and spheres of the nation and the states were to be kept entirely separate and distinct, by means of the rigid exclusion of the national from regulating any matter that was subject to the state power.
difference: dual federalism is a strict construction viewpoint, McCulloch v. Maryland showed loose construction viewpoint
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What are the 2 dimensions of federalism under the American Constitution and which is more important
- 1. division of power between national government and state governments
- 2. the role of the states and local governments in the structure and operation of the national government
2 is more important
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Wilson essay: on the basis of goodness we erect the pillars of wisdom and strength
what are the pillars?
- wisdom: senate
- strength: president
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under 18th century england and the u.s. constitution who is represented by each (one, few, many)
- 18th century england:
- monarch - energy - one
- house of lords - wisdom - few
- house of commons - fidelity to public interest - many
- u.s. constitution:
- President - energy - many
- senate - wisdom - many
- house - fidelity to public interest - many
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2 models on government
- 1: emphasis on rights (state constitutions)
- 2: emphasis on proper structuring (formed, arranged, proportioned, and organized) of offices (American Constitution)
Constitution plus bill of rights is a combination of model 1 and 2.
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That which is separate in American government is:
institutions
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