The Constitution

I. Introduction

Knowledge of government is very important. You cannot drive a car without a license from government. You cannot own land without complying with government’s rules. It requires a government license to work as a doctor, lawyer, accountant, architect, electrician, undertaker, plumber and so on.

You probably need a license to hunt, or own a gun. You even need a license to cut someone else’s hair for pay. You have to understand how government works in order to get anything done.

With all its regulations, government can seem to be all-powerful. But actually our government is limited in power. There is much that it cannot do. It cannot seize our land, unless it pays us for it. It typically cannot enter our homes, unless it has a warrant.

We constantly see the president on television. This gives the impression that he, too, is all-powerful. But people pretend he has more control than he really does. He cannot pass laws. He cannot declare war. He cannot remove any judges or congressmen from office. Usually he cannot even stay in his job as president for more than two terms.

There are also limits on what Congress and the Supreme Court can do. Congress cannot pass laws interfering with the powers of state governments. Congress can start wars, but cannot do much to stop them. The Supreme Court, for its part, can only decide cases presented to it. The Court can declare laws passed by Congress to be unconstitutional.

How do we know what the President, Congress and the Supreme Court can and cannot do? They are all explained in one brief document: the United States Constitution.

Obtain a copy of the U.S. Constitution and READ IT.

Without the Amendments and signatures, it is only 12 pages long. If you truly learn those 12 pages, then you will know more than most lawyers, politicians, college graduates, and 99% of the population. It’s that simple.

It will help you to read, and reread, those 12 pages, and constantly refer to them throughout the course. When you hear news about our national government, refer to the Constitution see what gives it a particular power.

II. Purpose of Course

Whenever you take a course, or do anything, ask yourself why you are doing it. In the parable of the Prodigal Son (Luke 15:11-24), the son left his father, lost everything, and became very hungry. The turning point was when he finally questioned his own conduct. What was the logic to it? He realized his behavior made no sense, and then changed. Imagine how much better off everyone would be if they questioned their own conduct that way. There would be no drug addicts, for example.

In the acclaimed movie “A Beautiful Mind,” the professor began his class by asking the question: “Why are you here?” The better answer you can give, the better you will do. I’m very glad you are here, but you should be able to explain your own goals in being here.

Let me ask myself: why am I teaching this course? Because I know that many of you will become experts in government as a result. You will use your knowledge for the benefit of everyone. Maybe you will limit government, or maybe you will improve it, or both. Or maybe you will use government to accomplish something more important in the free market.

In this course you will learn how our system works, how things are done, and what can be done better. This is more of a problem-solving course than history is. We will cite history in passing, but our focus is on what the system is, rather than how it developed. Of course, you can learn a great deal of history while taking this course.

In history, a student must learn many facts, without having time to focus on a particular document or event. In contrast, here we will learn a few things in great depth.

In history, a student learns by reading a great deal of material. In contrast, here we will learn by writing and problem-solving.

Doing well on the homework is the key to this course. Each week, I will assign about a dozen questions. They will be interesting and thought-provoking. The first questions require only short answers, while the later questions require increasingly longer answers.

Think of this course as though you were learning how a car works, or how to bake a cake. You need to understand the components and ingredients that make up the overall product. The goal is to learn how things work, how to do things, and how to solve problems. The key is to find issues that particularly interest you, and then learn as much as you can in connection with those issues.

IMPORTANT: Find issues you like in this course and use them to increase your motivation.

III. “Federal”

The Constitution set up our federal government. What does “federal” mean? In this context, it means national: the United States government headquartered in Washington, D.C. President Bush. Congressmen. Senators. U.S. Supreme Court. The people you often see on television or in the newspaper. These terms have the same meaning: “national government,” “federal government,” and “United States government.” They are completely different from “state government,” and “city government” or “local government.”

The first political party in the country was the “Federalist Party”. It stood for a stronger federal government. Alexander Hamilton founded it to help pass his program of a national bank and assumption by the federal government of all the war debts. He used it to impose a federal liquor tax, which resulted in the Whiskey Rebellion in 1794. Look up the term “Federalist Party.”

Do you know the difference between federal and state government? Look in your phone book. You’ll see they are usually listed in separate categories. Let’s take some examples. Who handles drivers licenses? (state) Social Security? (federal) Sales tax on computers? (state) Sales tax on gas? (both federal and state are included in the price at the pump) Public schools? (local) Post office? (federal) Libraries? (local) Army? (federal) Security guards at airports? (mostly federal now, due to 9/11) Traffic court? (local) Police? (local) Imagine you want to start a business and trademark the name of your business. Who controls trademarks? (mostly federal, see http://www.uspto.gov/, states can also protect business names)

How about this one: what is Federal Express? They deliver overnight packages, guaranteed. Is it part of the federal government? Nope. It is completely private. They use the name “federal” to make them look official. They have nothing to do with the government.

When you see government officials, think of whether they are federal or not. Why does it matter?

It makes a big difference. First of all, you have to know who to call. If the garbage man isn’t picking up your garbage, it doesn’t help to call the White House. The governor isn’t going to help you either. Neither is the Supreme Court. You should try calling your municipal building, where your mayor works. But if your grandfather’s Social Security check didn’t arrive, your mayor isn’t going to be able to help. You need to contact the appropriate federal agency. Maybe your Congressman can help if you cannot obtain answers from the federal government.

Second, if you ever reach the right person on the phone, you need to know what to say. What are your rights? What are the government’s obligations? Federal officials must comply with federal law, while state and local officials must also comply with specific obligations imposed by state law. The laws are completely different from each other. Federal law is in the United States Code. The cites to it look like “17 U.S.C. § 107” (this section allows fair use of copyrighted material). State law is in an entirely separate code book. The cites to it include an abbreviation of the state, as in “N.J.S.A. § 18A:35-4.7” (this section allows New Jersey parents to pull their children out of certain courses in public school).

Third, if you’re thinking about working for government, you need to know who to apply to. Don’t apply to state government for a job at the IRS. It’s federal. Don’t apply to President Bush for a job as a public school teacher.

Federal officials generally have more power than state officials. The Supremacy Clause of the Constitution, which is in Article VI, says that federal law is supreme. You are not likely to hear about a state police officer arresting an FBI agent, because he is a federal officer.

About ten years ago in Wayne, New Jersey, the FBI arrested the mayor. They didn’t even bother telling the local police, who thought he had been kidnaped. Not only do the federal and state government fail to communicate with each other, they often fight each other for control.

But sometimes local officials have more power than federal officials. The superintendent for a public school district often makes more money than the Congressman or Senator, and has more influence too. And if you ever receive a traffic ticket, I guarantee you will care more about the municipal judge than the president.

How about the media? Which government does the media pay more attention to? The federal government, by far. Why? Because it is more profitable for the media, and easier. It much simpler and cheaper simply to wake up each day and report on what the president is doing, whether it is newsworthy or not. That is one quick story to tell to the entire country. To report on each state would require 50 different stories, at 50 times the expense. The media would go broke trying to do that. You’ll almost never see your mayor, local school, Congressman or even governor on CNN or Fox News. It doesn’t mean they are less important than the president.

The federal government has three branches: executive (the president), legislative (Congress) and the judiciary (the Supreme Court). Each branch employs thousands of people. The executive branch employs millions, including the armed services.

IV. U.S. Constitution.

222 years ago, in 1781, there was no federal government. Then the colonies agreed on the Articles of Confederation, but that created a federal government with very few powers. The colonies retained all the power. Why did they ultimately give up power to the federal government we have today?

Had they known what was happening, maybe they never would have. 55 colonial leaders met in Philadelphia during the hot summer of 1787 to fix the Articles of Confederation, and decided instead to propose an entirely new Constitution with a powerful new federal government. Their meetings were held in secret, so no one knew what they were doing.

They began each session with a prayer. Their final product, the Constitution, was a marvelous legal document. Together these 55 individuals created something much greater than any could have produced individually. It established a national, republican government with limited powers.

What is a republican government? It means the people elect representatives to elect lawmakers and create laws. It has a layer of protection against a pure democracy in which the public directly decides issues.

Contrary to what you may hear today, our Founders did not like pure democracies. They worried about tyranny by the uninformed masses. They wanted a select group of people making our laws.

An example is our electoral college. Al Gore won more votes than George Bush, but Bush won more votes in the electoral college. Our president is not chosen directly by the people. It is chosen by the Electoral College. Another example is the original procedure for choosing U.S. Senators. State legislators selected them, not the general public. (This was changed by the 17th Amendment in 1913)

The Constitution limits the power of the national government in several ways:

1. By listing specific powers (e.g., running a post office).

2. By creating three branches as “checks and balances” on each other.

3. By making it difficult for one branch to act alone, without agreement by another branch.

4. By later adding a Bill of Rights to protect the people further.

The original Constitution also includes a few restrictions on the states, and even established a few individual rights.

The general rule is that the federal government only has the powers given it by the Constitution. States have any power that is not denied them by the Constitution.

THIS IS ONE OF THE MOST IMPORTANT POINTS IN THIS COURSE. James Madison said it this way: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.Federalist No. 45.

What specific powers are given to the federal government?

Article I – Congress. This sets forth its powers and limits.

Section 1 – Two parts of Congress (bicameral)

Section 2 – House Term and Method of Election

Section 3 – Senate Term, Method of Election, and Vote

Section 4 – Elections

Section 5 – Rules

Section 6 – Compensation and Immunities

Section 7 – Enacting Legislation, and Veto

Section 8 – Powers of Congress

some exclusive (e.g., Post Office), some not (e.g., bankruptcy laws)

Section 9 – Limits on Congress

Section 10 – Limits on States

Article II – President. This sets forth his powers and limits.

Article III – Courts. Establishes courts and the ability of Congress to define its power.

Article IV – States. They must respect other states’ laws, and requests to transfer criminals.

Article V – Amendment process.

Article VI – Supremacy Clause: federal law is supreme to state law.

Article VII – ratification process for Constitution itself.

Bill of Rights – additional protection against government power.

The most important part of the Constitution to understand is Article I. The Founders viewed Congress as more important than the president or Supreme Court.

V. Checks and Balances/Separation of Powers

The phrase “checks and balances” is one of the most popular terms used in connection with the Constitution. You’ll hear it on television and see it in the newspaper. It refers to the separation of powers between the three branches of the federal government, and how one branch will act to limit the power of a competing branch.

For example, Congress insisted that President Bush not invade Iraq unless Congress first authorized it. This “checked” the power of the presidency. It added “balance” to our government by ensuring that the president could not act alone, but needed agreement by Congress.

Another example is how the Supreme Court invalidates acts of Congress as unconstitutional. The Court thereby “checks” the power of Congress. Congress is “balanced” by the counterweight of the Court. Query: who “checks and balances” the Supreme Court? Ponder that question.

The “separation of powers” between the three branches (executive, legislative, and judicial) represents the same idea. It keeps the three branches apart from each other so that one does not gradually gain control over the other. Without the separation, one branch could influence and dominate another branch.

Occasionally, something blurs the distinction between the three branches. In response to extravagant spending by the federal government, Congress passed a law giving the president power to veto expenses on a line-by-line basis. This is known as the line-item veto. Many states already give their governor this power. It enables the chief executive (president or governor) to approve legislation but to pluck out and remove certain expenses in it. For example, new legislation may authorize money for the war on Iraq but also include building a new dam in Oregon. The power of the line-item veto would enable the president to approve the funding of the war but strike out the funding of the new dam. He would thereby modify the legislation before signing it. Query: does the line-item veto violate the separation of powers between the president and Congress? (The Supreme Court said yes, and invalidated the line-item veto).

VI. Issues to Consider

Each class, we will conclude with a set of issues to consider. The goal is to spark your interest. Here are the first:

  1. Should Congress limit judicial review, as in the Ten Commandments case?Article III subjects the jurisdiction of the federal courts to the power of Congress. This is rarely used. But now that federal courts have ordered removal of the Ten Commandments from the Alabama Supreme Court and also invalidated the Pledge of Allegiance, perhaps the time has come for Congress to remove authority from the federal courts. What, if anything, would you remove from the power of the federal courts?
  2. The Commerce Clause grants the federal government control over interstate commerce — i.e., trade between citizens living in different states. Courts have interpreted this to prevent states from taxing interstate purchases. When you order something from a company in a different state, there is no sales tax. For example, if you are in New Jersey and order a book from amazon.com, you do not pay any sales tax. If you buy that same book at a local bookstore, you must pay sales tax. Is this fair? Should states have the power to impose sales tax on purchases by out-of-state residents? (J.D. Manufact. Co. v. Storen, 304 U.S. 307 (1938))
  3. California recall — democracy run amok?Most Californians thought they were stuck with Governor Gray Davis as governor for four more years, despite his bankrupting the state. After all, Davis had narrowly won reelection last election, though with less than 50% of the vote. But government “by the people” rings true in our largest state. A million signatures to recall the governor forced a special election to decide whether to recall him. The people do not have to wait until Governor Davis inflicts more damage. If a majority of voters on October 7th cast their ballots against Gray Davis, then he is ousted from office before completing even one year of his four-year term. The replacement is then chosen by the casting of a second vote, among a list of more than a hundred candidates. But is this too much democracy?
  4. Eliminate certain government operations entirely?There was a time when did not have a federal government. For over ten years after the Declaration of Independence, we even lacked a president. Many did not see any problem with that. Think about what we need government for, and what we could do better without government involvement. Take the Post Office, for example, which was one of the first functions of federal government. We can mail a letter to anywhere in the United States and, for a mere 37 cents, it will be delivered within a few days. Federal Express charges 30 times as much, though it will deliver it faster. Yet the Postal Service delivers more mail in one day than Federal Express delivers in an entire year. The government asserts a monopoly over ordinary mail delivery (expensive urgent delivery, like that provided by Federal Express, received an exemption from the Postal Service, 39 C.F.R. § 320.6). If you set up a mail delivery service in your town, then the government would force you to stop. Do you agree with that policy? Would we be better off with a less powerful federal government? Would it be wise to eliminate the federal government?

Lecture 1 Quiz