Question 1: History & Theory Flashcards
(46 cards)
Principles of the Declaration of Independence (American Exceptionalism)
- Equality
- Rights
- Consent
- Right to Revolution
- Equality
Americans believe that nobody is born superior in contrast to how Britain (and the rest of the world) believed in divine right (a King appointed to rule by God).
- Rights
The gov’s sole job is to protect your fundamental rights (life, liberty, and the pursuit of happiness (property)).
- Consent
The government’s power comes from the people.
*Federalist 1: Government by reflection and choice vs. accident and force.
- Right to Revolution
If the government fails to protect our rights, it is the duty of the people to revolt and overthrow and replace that government.
*Declaration of Independence: “a long train of abuses and usurpations.”
Grievances (Lessons Learned) in the Articles of Confederation
- Right of Representation
- Independent Judiciary
- Weak Executive: Don’t want a king
- Weak Central Government: Should only be concerned w/ foreign policy and national security
- Written Constitution: Not explicitly in the DoI, but British Constitution not written down.
Articles of Confederation
Americans wanted weak central government
Madisons Failures of AoC
- Failure of the states to pay taxes
- Encroachment by the states on federal authority
- Violations of current treaties
- Trespasses of the states on the rights of each other (lack of unity)
- Want of concert where common interest requires it (lack of unity)
- Want of ratification by the People of the AoC
- Lack of legal/coercive federal sanctions
- Central government could not protect the states from internal overthrow
- Multiplicity of laws
- Mutability of laws
- Injustice of laws of states
George Washington’s Pillars (Solutions to AoC)
- Form/Develop a national character/identity (give fed. gov. power).
- Have a sacred regard for public justice (pay debts).
- Build and fund a permanent peace establishment (military).
- Be willing to put the common good above the states’ interests.
Marshall’s Arguments for Judicial Review
- The nature of the constitution includes limits and boundaries.
- The constitution is written down.
- We must treat the Constitution like it is law.
- Judicial review arises under the Constitution.
- The judges take an oath.
Limits on Judicial Review
Ineffective:
1. Other Branches have the Power to Interpret the Constitution (Cooper)
2. Cannot Review State Court Judgments (crossed out) (Martin)
3. Political Controls
a. Amendment
b. Appointment
c. Size and resources
d. Impeachment
Constitution (1787-79 – Present) (Madison)
-Central govt. operated directly over individuals rather than the states (fundamental switch from AoC)
-gave more power to govt. which is exactly what the people did not want but framers persuaded people by enumerated power and bill of rights
Constitution: Enumerated powers
List of the limited powers of the federal govt.
Constitution: Bill of Rights
List of the rights of the people to ensure gov. doesn’t get too big and infringe on those rights.
Federalists
Supported constitution; Washington, Hamilton, Madison (Madison switched from nationalist to dual-federalist b/c he feared govt. was given too much power after constitution was ratified)
Anti-Federalists
Opposed Constitution; Jefferson
Federalist Characteristics
*Strong central gov.; weak state govs.
*Opposed Bill of Rights as unnecessary and also fearing the list would be viewed as exclusive.
(Ultimately, added Bill of Rights in order to get the Constitution ratified.)
*We want order b/c when there are messes, it leads people to want a King to bring order.
*Messes are inevitable if you give power to the people, and we don’t like messes.
Anti-Federalist Characteristics
*Weak central gov.; strong state govs.
*A strong central gov. could easily become tyrannical and resemble the British monarchy from whom they just freed themselves.
*Gov. should be close to the people, so it should be with the states.
*Demanded Bill of Rights in order to protect individual liberties from a large central gov.
*Having a mess is the price you pay for having a democracy.
Protection of Liberties (Worst to Best)
*Enumerated Powers: Doesn’t work b/c implied powers (N&P clause. Parchment barriers don’t work).
*Federalism: Doesn’t work b/c implied powers (N&P clause).
*Judicial Review: Limited and possibly fragile.
*Separation of Powers: The only thing that really protects peoples’ rights.
Least Dangerous/Safest Branch
Judiciary b/c is only has power of judgement and is made up of lawyers who are the best of society, are best equipped to make important decisions, and whose job it is to be fair and objective
Most Dangerous Branch
Legislature b/c it’s closest to the people and has the power of the PURSE and SWORD (declare war)
-Internal Check: Split into two and make them very different (House and Senate)
-External Check: executive’s veto power and judiciary’s judicial review.
Nationalists (Federalists) re Judicial Review
Judicial review is good b/c they are immune to majoritarian pressure and unless some branch has the last word, the Constitution wouldn’t have a settled meaning (supremacy and uniformity).
Federalist 78: Judiciary is the safest
*Lacks power of purse and sword and only has the power of judgement.
*SC is made of lawyers who’re objective, trustworthy, not partisan, weighed down by precedent, and are best equipped to answer b/c smartest and fairest of society.
Dual-Federalists (Dem-Reps) re Judicial Review
The people should have the last word on Constitutional interpretation.
-Counter-Majoritarian: Judicial review is bad b/c unelected and unaccountable judges deciding constitutional matters makes our system an oligarchy in direct conflict with the principle of representative democracy (this makes judiciary dangerous)
*Judiciary’s primary purpose is to check and enforce the separation of powers.
