Where our government came from.

Declaration of Independence

We all know – Jefferson’s “self-evident truths” – life, liberty, pursuit of happiness (happiness included property and work)

John Locke  (late 1600’s)- “all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, liberty, or possessions.”

Adam Smith – (contemporary of Jefferson) – liberty includes the right to choose how to work and to own property

Where Jefferson took those “truths”

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,

What we remember less is the “grievances” of Jefferson against the King, and more globally, against the Government of Britain

• Refused assent to laws necessary for public good
• Forbidden Governors to pass laws 
• Refused to pass laws unless Americans give up their right of Representation
• Made legislatures go far from their capitals
• Dissolved local legislatures
• Refused to allow local elections
• Obstructed laws of naturalization *
• Obstructed the Courts from administering justice *
• Made Justices totally dependent on him
• Erected a “multitude of offices, and sent hither swarms of officers to harass our people and eat out of their substance” * (DOGE)
• Kept standing armies in time of peace * (ICE)
• Made the military independent of civil power (ICE)
• Quartered troops
• Protected troops from local justice (Boston Massacre)
• Restricted trade * 
• Imposed taxes without consent (NO TAXATION WITHOUT REPRESENTATION) * Tariffs
• Deprived us of trial by jury * ICE
• Taken away the free system of English Laws – (martial law)

*If some of those sound familiar – they should

American Revolution was a war against a “strong executive” – the King.  And it was a war for economic independence – for greater trade and land expansion

The “United States” government was established under the Articles of Confederation

• Weak (the “opposite of the King)
• The thirteen colonies – “now” states – had greater power – especially over taxation
• The central government had lesser powers – could not raise own funds
• Required nine of 13 to pass a resolution
• There was no chief executive – just the “President of the Congress” but not a true executive (the Revolution was run by “committee” – the whole Continental Congress)
• Delegated strategic and tactical command to G. Washington

The Articles were in effect from 1781 – 1787 

• It was clear that the differences among the states could not be resolved and that the US was too weak to survive – prosper  (protection of the borders without a standing army – both from Native Americans and from British, Spanish Expansion
• Not Surprising that the “Founding Fathers” determined to have a “do-over.
• So they spent the long-hot Summer of 1787 meeting in secret in Philadelphia
• They were “extra-legal”.  No one from the Congress authorized them to write a new document
• How secret?  They nailed the windows shut so no one could eavesdrop on the discussions

Who was there:

• George Washington – President
• James Madison  – Virginia
• Alexander Hamilton – New York
• John Jay  – New York
• Benjamin Franklin – Pennsylvania (81 years old)

What did they come up with: the politics of Constitutionalism

• The Great Compromise (big state v small state)
• The 3/5’s Compromise  (non-slave dependent state v slave dependent state)
• Electoral College Compromise  (direct democracy versus representative democracy)
• Slave Importation Compromise (north v south)
• The Ratification Compromise (the Bill of Rights) (Trust or Trust but verify) 

A three part sovereignty (power of the state) – 

• limited Federal power,
• limited State power,
• unlimited citizen power

A three part government structure – Legislative, Executive, Judicial (at all levels)

• Legislature writes the law 
• Executive “executes” the law 
• Court determines how law is applied (and ultimately what is Constitutional)

A commitment to a “Democratic Republic” – popular election of ½ of the Legislative body

A commitment to a “gap” between the “people” (the “mob”) and parts of the government

• State Legislatures (popularly elected) chose Senators
• Electors chosen by legislatures chose the President 
• A division of power in the levels of government

Legislative – had the “primary power”  established the laws regarding:

Taxes, Money and Debt

• Laying and collecting taxes (duties, imposts, excises)
• Pay government debts (provide for common defense and general welfare)

• All taxes must be “fairly” shared throughout the US
• Borrow Money

Commerce and Trade

• Regulate commerce with foreign nations, among the states, and with the Indian tribes
• Rules of Naturalization, and Rules for Bankruptcies
• Coin Money, Regulate value, fix standards of weights and measures (a pound is a pound)
• Punish counterfeiting
• Establish Post Offices and post ROADs
• Set up Patents and Copyrights

Law and Order

• Set up Article III Courts under the Supreme Court
• Punish piracy and offenses of the high seas and against the Laws of Nations
• Declare War (grant letters of marque and reprisal, make rules for captured men and property)
• Raise Armies (but only fund the for two years at a time)
• Create and maintain a Navy
• Create Rules for the military
• Call forth (state) militias to execute federal laws, suppress insurrection, repel invasion
• Organizing the militia – pay for using the state militia for federal purposes

• States appoint the officers
• Training and discipline “prescribed by Congress”

Federal District

• Set up a Federal District (the Capitol) 
• Exercise authority over other Federal areas (Forts, Dock yards, Arsenals, 

Elastic Clause (necessary and proper)

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.”

Article I

The House – 

• two year term
• 25 years old
• US citizen for 7 years
• live in the state
• direct election by the people
• Specific power over the purse – money bill must start here

The Senate – 

• six year term, 
• 30 years old, 
• 9 year citizen,
• inhabitant of state
• chosen by state legislature (17^th Amendment)

Specific power over foreign treaties, Presidential advisors and appointments, Co-Equal – but with different powers

• Must agree with each other in detail to “pass a law”

What States Cannot Do

• No treaties, alliances or confederation (US Civil War??)
• Grant letters of marque or reprisal
• Coin money or bills of credit
• Make anything other than gold or silver as legal tender
• No bill of attainders or ex post facto laws
• No titles of nobility (What about Kentucky Colonels or Ohio Commodores)
• No imposts or excises on exports or imports
• Keep troops or ships in time of peace
• Make alliances or contracts with other states or foreign power to wage war

            (still allowed for state militias)

Article II Powers – the President

THE EXECUTIVE POWER – THE POWER TO EXECUTE THE POWERS OF THE UNITED STATES (as designated by the Congress – mostly)

Qualifications – 

• Natural Born US Citizen 
• 14 Year US resident
• 35 years old
• 4 Year Term (limited to two terms (22^nd Amendment)

Elections

• Electoral College – chosen originally by state legislature – today by state vote
• Electors = total number of House Members (435 today), Total Number of Senators (100 today) 3 for the District of Columbia (23^rd Amendment)  – total 538 – magic number 270
• All but two states are winner-take-all – win Georgia by 10,000 – get all Georgia’s votes
  • Nebraska and Maine are winner-take all by Congressional District – state wide winner  – Gets the other “2” votes

A Vice President is chosen the same way – must be eligible to be President

Constitutional Powers of the President

• Commander in chief of the Army and Navy
• May require principal in executive departments to report opinions
• Grant reprieves and pardons

With “advise and consent of Senate” (might require 2/3 of Senate, or a simple majority)

• Make treaties
• Appoint ambassadors, public ministers and consuls 
• Heads of Departments
• Judges to Supreme Court and lesser Federal Courts
• All other officers of the United States 
• (Congress can vest the power to appoint lesser officials in the President alone)

Fill vacancies in “Senate confirmed” offices while the Senate is in recess

So where does the President get “all the power”

One person making a decision versus 535

Congressionally delegated powers (tariffs)

Foreign Policy Powers – treaties

Commander in Chief Powers – military

WHAT ABOUT IMPEACHMENT

Final note – no President has been removed from Office – Nixon resigned to avoid impeachment (part of his deal with the House and Senate Democratic and Republican leaders)

Note two – The Ford pardon was not “part of the deal” – 

What about the “Unitary Executive” theory?

A current theory which stands that the President acting as “Chief Executive” puts him in direct command and control of every part of the executive department.  It flies against the “independence” of agencies like the Department of Justice, the National Institute of Health, the Environmental Protection Agency, the Federal Reserve, the SEC and the like

What would Washington do?? – He was “the leader” – but the leader against the King of England – so there’s that.

Article III – Judiciary

Judges both on the Supreme Court and “inferior Courts” serve for life

Jurisdiction

• All cases in law (statutory law)
• All cases of equity (civil cases)
• Under the Constitution, Federal Law, Treaties
• Federal Ministers, Ambassadors, Consuls
• The United States is a party
• Between two or more states
• A state and citizens of a different state
• Citizens of different states

Supreme Court – Original versus Appellate Jurisdiction

 Original – state v ambassador or other “public consul”,  Cases where a state is a party

 Appellate – all other cases (statutory and civil) unless Congress makes an exception

All Criminal Trials are by jury – in the state where the crime is committed  

What is vague?

• Appellate Courts (District, Appellate, “specialty courts” (FISA, Immigration, Tax)
• Constitutional authority (not “clarified” until Marbury v Madison
• Supremacy of Federal over State Authority(not “clarified” until McCullough v Maryland)
• WHO ENFORCES THE SUPREME COURT’S DECISIONS??????
• Number of Justices – established by Congress – ranged from 5 to 10, set at 9 in 1869
•             (part of the Andrew Johnson v Congress – impeachment stuff)

          FDR – court packing – failed to pass (influenced the Court anyway)