Ask Me Anything About the Constitution

TALKING POINTS - Laura Wagner, ESQ.

I.  BACKGROUND

A.  After the Revolutionary War, James Madison, Alexander Hamilton and George Washington feared the country was on the brink of collapse.  Existing constitution, The Articles of Confederation, was not sufficient.

            B.  Organized a Constitutional Convention to meet in Philadelphia in summer of 1787.

C.  The framework of the Constitution was fiercely debated for three months in the blistery summer heat.

D. There were debates regarding power between the branches of federal government, and powers between the national and state governments.

E.  James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether or one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”     

F.  Thus, they created three different branches of government to administer three different kinds of power.  This is known as the separation of powers, although the Constitution contains no provision explicitly declaring that the 3 branches of government should be separate.

1.  Legislative branch made the laws through a Congress of 2 houses, Senate and House of Representatives.      

2.  Executive branch enforced the laws through a president, a vice president, and numerous executive departments such as Treasury and State.

3.  Judicial branch interpreted the laws through a Supreme Court and other lower courts.

G.  Federalism is the sharing of power between national and state governments.  It is one of the most important and innovative concepts in the U.S. Const., although the word never appears. 

H.  The Bill of Rights, the first 10 amendments to the Constitution, was written by James Madison in response to calls for greater constitutional protection for individual liberties.  It lists specific prohibitions on governmental power.  The anti-Federalists (those opposed to a strong national government) pushed for the Bill of Rights.

II.  Contents of U.S. Constitution

A.  After fierce debate and many compromises, the Constitution was adopted on September 17, 1787 by the Constitutional Convention in Philadelphia, and went into effect on March 4, 1789.

B.  It consists of a Preamble, Seven Articles, and 27 Amendments, the first 10 of which comprise the Bill of Rights.

C.  Preamble - “We the People” - this is the familiar phrase in which many Americans take great pride - “We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

D.  The first 3 articles establish the rules and separate powers of the three branches of the federal government.

                        1.  Article I - Legislative - 2 houses of Congress, House and Senate

                        2.  Article II - Executive - led by the President

                        3.  Article III - Judiciary - headed by Supreme Court

E.  Articles 4 - 7 describe the relationship of the states to the federal government, establish the Constitution as the supreme law of the land and define amendment and ratification procedures.

            F.  Bill of Rights

1.  The first 10 amendments of the Constitution which call for greater constitutional protection for individual liberties. 

2.  The Bill of Rights establishes the many individual freedoms which protect Americans - for instance, freedom of speech, freedom of religion, right to a jury trial, freedom from illegal search and seizure, etc., and lists specific prohibitions on governmental power.

3.  For many Americans, this is the part of the Constitution with which they are most familiar and which provides and protects our individual rights and liberties.

III.  Separation of Powers/Checks and Balances

A.  The separation of powers is a critical component of the Constitution, and is essential in order to prevent the concentration of power and to provide for checks and balances.  It is a cornerstone of our government.

B.  Separation of powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.  The Legislative, Executive and Judicial branches are kept distinct in order to prevent abuse of power.

            C.  The traditional characterizations of the three branches are as follows:

1.  Legislative - enacts the laws of the country and appropriates funds to operate the government.

2.  Executive - implements and administers the public policy enacted and funded by the legislative branch.

3.  Judicial - interprets the constitution and laws and applies its interpretations to controversies brought before it.

D.  Within the separation of powers, each of the three branches of government has “checks and balances” over the other two. 

1.  Congress makes the laws, but the President can veto them and the Supreme Court can declare them unconstitutional.

2.  President enforces the law, but Congress must approve executive appointments and the Supreme Court rules whether executive action is unconstitutional.

3.  The Supreme Court can strike down actions by both the legislative and executive branches, but the president nominates Supreme Court justices and the Senate confirms or denies their nominations.

4.  James Madison, Federalist 51: “Ambition must be made to counteract ambition:, so that each branch will seek to limit the power of the other two branches to protect its own power.  Such a system makes concerted action more difficult, but it makes tyranny less likely.

IV.  Judicial Independence

            A.  Another cornerstone of the Constitution, and essential for our country.

B.  Judicial component is independent in order to insulate its members from punitive or coercive actions by the legislative and executive departments of the government.

C.  Judiciary must be independent in order to make fair decisions that uphold the rule of law, an essential element of any genuine constitutional democracy.

D.  Alexander Hamilton: “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”  He claimed that only an independent judicial branch of government would be able to impartially check an excessive exercise of power by the other branches of government.

            E.  Constitution protects judicial independence:

                        1.  Judges are APPOINTED rather than elected.

2.  Are appointment for LIFE (so long as judge satisfies the ethical and legal standards of the office).

                        3.  SALARY cannot be reduced by Congress or the President.