American Constitutional Development: Week 1 Notes
American Constitutional Development: Week 1 Notes PSC 2302
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This 4 page Class Notes was uploaded by Meredith Wagner on Tuesday August 2, 2016. The Class Notes belongs to PSC 2302 at Baylor University taught by Dr. Norton in Fall 2016. Since its upload, it has received 5 views. For similar materials see American Constitutional Development in Political Science at Baylor University.
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Date Created: 08/02/16
Chapter 1 Notes Constitutions and Constitutionalism Week 1 – August 25, 2016 A constitution is a foundational blue print. It is 1. a national framework providing basic principles of organization and operation, 2. A symbol to which citizens defer and pledge allegiance, and 3. More difficult to change (amend) than other laws. Most are written in a single document, though some country’s constitutions are not documented on paper. A government is constitutional if it practices constitutionalism – the manner in which a constitution accomplishes its roles as a framework for the nation. It is a step beyond simply having a written constitution. It requires consistent ACTION and ADHERANCE to the “higher law.” Elements of Constitutionalism Limited government (ex: Checks and Balances) Fundamental worth of each individual (ex: Bill of Rights) The Rule of Law – “higher law” above the policies of leaders or majorities. The constitution holds leaders accountable for legal principles. No single person is above the law of the land. Characteristics of Constitutions 1. Preamble – “This is what we stand for.” 2. Organizational Chart – Blueprint, “This is how things operate.” 3. Amendatory Articles – Changes a. Constitution is the Supreme Document and cannot be changed easily. 4. Bills of Rights – Promises to the individual a. There isn’t actually a mentioning of the “Bill of Rights” in the Constitution. The BOR is the first 10 amendments. 3. (cont’d) Amendment twostage process 1. proposal: 2/3 majority vote of Congress must accept proposal, OR a national constitutional convention must be held. 2. ratification: ¾ majority vote of the states (in legislatures), OR by special conventions determined by Congress. 26/27 of the ratification has been by legislative vote. Amendments either… Establish, confirm, or create a right OR Make structural changes *EVERY constitution establishes institutions, lays out procedures for rulemaking, and establishes resolutions to conflicts and disputes. 3 Pillars to the US constitution 1. Separation of Powers (Article 1=Legislative, Article 2=Executive, Article 3=Judicial) + Checks and Balances (BOOK: “Checks and balances have served more to produce overlapping relationships among the three branches.” For example, Congress has the power to restrict appellate jurisdiction: power of higher court to review/change lower court. One branch is getting involved in another. Checks and balances focus more on dividing by personnel (a person serving a term in Congress cannot also be a Supreme Court Justice). 2. Judicial Review – the power of the judicial branch to review and invalidate legislation/executive action, in other words, to determine constitutionalism of actions of the other branches 3. Federalism – Constitutional division of power between levels of government (not a unitary system or a confederation). Negative Rights limit governments from doing certain things that violate liberties. “Congress shall make no law respecting an establishment of religion.” “The federal government has no authority to…” Positive Rights are more common than negative rights in contemporary constitutions. Many establish rights for its citizens. (such as the right to work, housing, health care, etc). The United States Constitution does not establish these social rights because it was drafted long ago. Rather, these social rights are found more in US policy, and phrases such as “equal protection” and “due process” “The government guarantees an education for all its citizens.” Theories of American Constitutionalism Individual Believe individuals take precedence over government Rights are INHERENT, and the gov’t should be established to preserve and promote these rights, and help individuals achieve personal rights and private interests. Individualists feel the government should have the power to “regulate anarchy rising from egotistic human behavior.” Justice is PROCEDURAL. Procedural Justice is a “check list” of rules and procedures to be done. Each person is treated equally in court, no exceptions. “Fairness is exact equality.” Communitarian Emphasizes positive role government plays in lives of citizens. People NEED community. People NEED values established by the government in order for society to function at its best. Emphasizes the public’s involvement in solving public problems. Emphasizes the role of the public in politics. Impose values of the majority on minority thinkers for the sake of the common good Gov’t plays MORE of a role in determining what is fair Justice is SUBSTATIVE. Substantive Justice focuses on the fairness of the results achieved. “Justice is fairness based on flexible circumstances.” “Justice is a matter of perspective.” English Common Law / Parliamentary Practice Common Law is law that stems from court decisions handed down by judges. (JUDGES MAKE THE LAW ~ a law that is not official but has been followed traditionally and, thus, should continue to be followed) Found in the form of precedent or “stare decisis” – acting REASONABLY (the judge interprets the situation and determines the outcome) *Limits the power of Parliament and the Monarch *caseoriented, as opposed to codeoriented The United States Constitution pulled two core concepts from British Common Law: due process, and the right to a trial by jury. EXTRA notes (not from class lecture): Sir Edward Coke was an important member of Parliament in the early 1600’s who fought for Parliament’s legitimacy as a ruling power of government. He argued for “reasonableness” (stare decisis) and “higher law” (common law). He claimed judges were proper interpreters of the law of the land, and could void governmental actions that violated higher law. (Sound familiar? Judicial review) When the northern colonies deviated from English legal traditions, and the southern colonies continued to obtain a more traditional approach, what held them together? 1. England’s increasing involvement in colonial affairs, and 2. The rise of colonial assembly (and state legislatures) as lawmaking bodies. The colonies valued a more decentralized authority, as opposed to either local or central authority having more power over the other. REVIEW What is a constitution? What makes a constitutional government? What is constitutionalism? What are the 3 pillars of the US Constitution? What are Negative and Positive Rights? Explain Individualist and Communitarian theories.
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