American Government Laws and Institutions
American Government Laws and Institutions PSCI 1040
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Date Created: 10/25/15
PSCI 1040 004 Jim Battista University of North Texas Constitution Social contract theory 0 Notion that government arises from the consent of the governed a Social contract pact that brings a people out of anarchy and into some form of government a Change from rule by divine rightinherent hierarchy 0 Thought experiment state of nature a What if people had no government at all e What if people were governed only by own human nature 9 Doesn39t need to be a historical reality 0 Dim view of human nature a Rapacious self interest o Indifference to each other maybe hostility 0 Therefore state of nature dangerous place 0 Each of us has natural rights 0 Most important self preservation o I can do what I think is necessary to keep myself safe 5 Including killing you before you kill me a You weren39t going to come after me Well tough Life in Hobbes state of nature In such condition there is no place for industry because the fruit thereof is uncertain and consequently no culture of the earth no navigation nor use of the commodities that may be imported by sea no commodious building no instruments of moving and removing such things as require much force no knowledge of the face of the earth no account of time no arts no letters no society and which is worst of all continual fear and danger of violent death and the life of man solitary poor nasty brutish and short Leviathan Hobbes solution 0 Collective action problem 0 We all want to be safe from violent death How 0 Institute government to protect us all a By creating a social contract a We each agree to give our selfdefence power to the King a We each agree to submit to the King a Hokey Real life examples The leviathan o What can the sovereign do 0 Whatever he she wants 0 No control over the sovereign 9 Contract isn39t between me and the King 0 Contract is between me and you 0 King has no promises to keep no contract to abide by 0 Therefore revolution is illegitmate wrong 9 Revolution is crime against everyone else in the Contract 0 Starts with different state of nature a Arrives at different conclusions 9 People generally okay but are a few bad apples 0 No unrestricted right of self defense 9 Must give people who wrong you a fair trial etc a State of nature inconvenient not dangerous bloodbath Inconveniences 0 Everyone has to protect hisher own rights property speech etc difficult o No unbiased and fair way to settle disputes everyone is own judge a Without collective action we get just rule by the strongest Locke s solution 0 Same collective action problem but less dire o How to avoid inconveniences 0 Form government 9 Give up uncontrollable liberty a In exchange for secure rule of law 3 Hire a government to protect our rights Lockean government 0 Contract is between people and government a King or gov39t has duties and limits 0 Therefore is right to revolution 0 If the King tyrannizes us and breaks the contract 0 Then the contract is broken n Then he isn39t King because he39s only King by the contract a Look at Declaration of Independence 0 Limited government Articles of Confederation 9 First attempt at national government 9 Follow on from prewarearly Revolutionary Continental Congresses o Confederation much more decentralized than current federation o Other countries currently run as confederations Canada Switzerlan a Balance of power closer to localprovincial than national o Explicitly union of states not of citizens a US under Articles is like UN now Weak government under the Articles Congress could not directly affect people only state governments o No authority to regulate individuals 0 No power of enforcement states enforced on behalf of national government or failed to enforce Weak government under the articles Congress could not tax only requisition money from states a No power to compel payment most states didn39t pay much or even what they had said they would 0 Debt problems after peace Congress had debt and states wouldn39t pay for it collective action Weak government under the articles 9 Congress could not regulate interstate and foreign commerce 9 Taxes and customs between one state and another 0 Foreign countries had to negotiate trade treaties with each state legislature 0 Each state had one vote easy for small populations to obstruct bills a 913 votes needed to pass legislation 9 Amending the Articles required unanimous consent 9 No separate federal executive 0 Not necessarily crippling modern parliamentary systems 0 States and national government could both coin money Problems under the Articles 0 Debt and currency devaluations 0 Trade problems incl no exports to French British colonies in These led to a severe economic downturn 9 Part of why there are few movies about the Revolution 0 Increases in personal debt and accompanying foreclosures etc Problems under the Articles 0 Shay39s Rebellion a of debtors terrorized MA gov39t 0 National government could offer no help in dispersing 0 Wave of similar uprisings followed a State legislatures bowed to pressure devaluations inflation o Argument gov39t isn39t protecting people39s rights need new one o Argument social contract is broken we need a new one Getting to the Constitutional Convention 0 1787 Constitutional Convention 0 Met to discuss amending the Articles 0 Had no authority from anyone to propose new constitution in Big division federalists and antifederalists round 1 o Federalists favored stronger central gov t a Antifederalists didn t thought confederacy better a Antifederalists often didn t show up Henry RI The Constitutional Convention setting up a Framers were strategic actors not necessarily disinterested o Framers were revolutionaries 0 Large conflict over content of document 0 Threats to withdraw during convention common 0 Ratification a near thing in NY VA MA a Actual Constitution emerged late in the process 0 Some people we think of as being pivotal and important weren39t 0 Washington 0 Franklin o Jefferson o Gouverneur Morris 0 Agreement that changes needed to Articles but disagreement about what changes 0 Differences in Small states vs large states small states knew they39d be losing some power if apportionment was by population or wealth o Slave states vs free states legality of slavery and importing slaves apportionment a Mercantileseacost vs farminginterior spending and tariff rates 0 But still agreement that we needed a new social contract The big problem 0 Major disagreement large vs small states a VA big state plan vs NJ small state plan a Dispute largely over apportionment but also over questions of how active national gov39t should be a settled by Connecticut Compromise aka Great Compromise a No really great rationale at the time 9 Just what happened to pass the convention Virginia New Jersey amp Connecticut plans Virginia Plan l New Jersey Plan l Final Constitution Large state Small state Compromise Bicameral leg Unicameral leg Bicameral Both Apportioned by pop Equal rep by state Mix one house eacl Only lower house elected Only lower house period Only lower house elect Senate sel by House No Senate Senate sel by state le Single executive Plural executive Single exec Exec sel by House Exec sel by leg Exec sel by elector Judic sel by leg Judic appt39d by exec Judic appt39d by exe 84 confirmed by Sen Council of Revision No clear veto Presidential veto The problem for the Framers The problem the Framers faced was constructing a new government that was stronger and more active but not too strong or too active If men were angels no government would be necessary If angels were to govern men neither external nor internal controls on government would be necessary In framing a government which is to be administered by men over men the great difficulty lies in this you must first enable the government to control the governed and in the next place oblige it to control itself how do you control the guy you hired to whip you Federalist 10 argues that the problem is faction By a faction I understand a number of citizens Whether amounting to a majority or a minority of the Whole Who are united and actuated by some common impulse of passion or of interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community Solution 1 Prevent factions How could we prevent factions from forming Only two ways 0 Give everyone the same opinions the same passions and the same interests likely 9 Abolish the liberty which is essential to its existence a cure worse than the disease So we can39t prevent factions we can only limit their mischief The Constitution does this two ways 0 A large republic 9 Representation A large republic o This is new new new old thought had been you need a small state for democracy 0 Don39t need to worry about minority faction so how to keep them minority 9 Large republic means that many factions elected to Congress 0 None a majority therefore must compromise o Helps solve problem of local majority imposing will on minority 0 Really an argument for taking power from states Representation a Madison argues that representation is better than pure democracy 0 Electoral process refines preferences of voters o Theoretically we39ll elect those smarter than the average bear Under such a regulation it may well happen that the public voice pronounced by the representatives of the people Will be more consonant to the public good than if pronounced by the people themselves convened for the purpose When factions attack 0 What if the worst happens 0 What if a faction wins an election 0 Different lengths of term 0 2 for House a 4 for Pres a 6 for Senate 0 Ifyou want control of gov39t need to win all 3 branches 0 Also checks and balances separation of powers 0 Really separated institutions sharing power 0 Give each branch tools to defend itself a Then rely on selfinterest Antifederalists o Antifederalists round 1 and 2 disagreed 9 Thought solution was stronger state gov39ts o Legislature too small and therefore elitist o Derided lack of limits on gov39t power 0 So they wanted a Bigger Congress a More power to states 0 Rotation of legislators term limits 0 Bill of rights 0 Federalists won but with important concessions General features of the Constitution 0 We39ll deal with what the Constitution says about Congress the Presidency and the Courts in the relevant sections of the course 0 We39ll deal with federalism next 0 Focus here is on general trends Distrust of democracy 0 Framers didn39t trust the mass of people to have really good judgment 0 Figured we39d just vote ourselves bread and circuses vote to expropriate the rich 0 Not necessarily crazy remember Shays39 Rebellion Distrust of democracy 9 Wanted many checks on popular opinion popular passions o Bicameral Congress 9 Indirect election of Senators a Limited government can only do what Const says it can do 0 Indirect election of President 0 Strong independent courts 0 Later a bill of rights Fear of unstable preferences Video store problem again Usual solution make it hard to change things 0 Bicameral Congress with indirectly elected Senate 0 Amendment process difficult o Usual way 23 of each House of Congress hard to do esp before direct election of Senators Then ratification by 34 of state legislatures 2lst ratification by state conventions Other ways 23 of state legislatures can call a convention a Never done fear that it would be Const Convention ll 0 0000 State constitutions generally State constitutions differ in many ways from the federal Constitutions o Longer 0 Average 28000 words US is about 7000 a Longest Alabama 1901 175000 words a Shortest Vermont 1793 7500 words State constitutions generally 0 Much more specific and detailed 0 Statutory vs liberal constitutions a Details that would be plain law in for Feds specified in state constitutions 0 Way to lock in your implementation interpretation 0 States deal with much wider array of issues than federal gov39t does State constitutions generally 0 Many amendments 24 states have more than 100 9 Many exceptions to general rules granted by amendment 0 Many grants of authority to citiescountiesetc granted by amendment 0 Contributes to length complexity State constitutions generally 0 Younger it is not uncommon for states to adopt new constitutions when the old one is too unwieldy 0 Newest Georgia 1982 LA 1975 MT 1973 o Oldest Massachusetts 1780 NH 1784 VT 1793 o Attempt in TX 1974 ended in failure Texas Constitution history 9 Currently under seventh constitution from 1876 a 1826 Coahuila y Tejas a Created TX as Mexican state a 1836 Texas Republic o 1845 Const under which TX admitted to US 0 1861 TX Confederate const 9 1866 Modified version of Const of 1845 a TX seeking readmission to US 3 Modifications abolished slavery gave freedmen rights a Later rejected by Congress o 1869 Reconstruction Constitution 0 Centralized state government Governor appointed many officials o Edmund Davis a Elected Governor in 1869 dubiously a New laws passed by legislature Davis 0 Martial law by gubernatorial whim a New state police force responsible only to Davis 9 Some controls on press TX Constitutions since 1869 o More on Constitution of 1869 o 1873 Davis loses election to Confederate veteran Richard Coke o Refuses to leave office 0 Eventually forced from office by TX militia 9 1876 What we still use How current TX Constitution fits 0 Current TX constitution typical of state constitutions 0 Long 80000 words US Const is 7000 a Detailed 9 Talks about sewer placement hospital districts in several COUntleS a Very amended 432 approved 174 rejected as of 2003 o Middling oldish 14 older Broad outlines of TX Constitution a VERY limited government 0 Reaction to experience under Davis 0 Dispersal of powers X Constitution 0 Plural executive Many executive offices elected common in states Power dispersed to many officials Old saw that Lt Gov is more powerful than Gov O 0 0 0 Many many powerful boards and commissions X Constitution 0 Restrictions on what legislature can do a Often done through specific language in Const a Also parttime lowpay legislature has effects
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