Constitutional Foundations Vocabulary

10th amendment

"The powers not delegated to the US by the Constitution, nor prohibited by the states, are reserved to the states respectively, or to the people." Means that the national government has only those powers specifically assigned by the Constitution.

3/5 clause

(1.2.3) Allowed slave states to count three-fifths of their slave populations for the purpose of congressional apportionment in the House. Changed by Section 2 of the 14th Amendment

census clause

(1.2.3) Census must be taken every 10 years, to count the population in each state in order to ensure that each state's representation in Congress remains proportional to its population.

Vice Presidency

(1.3.4) VP of the US is the President of the Senate but has no vote unless the Senate is equally divided (there's a tie) about an issue. (2.1.6) VP will have the powers of the president and do the president's job in case the president is removed from office, dies, or resigns. Tends to be fairly weak in the presidency; selected because he/she balances the presidential ticket

necessary and proper clause

(1.8.18) Basis for all of the legislative branch's implied powers--powers not explicitly listed in the Constitution-- but held to be legitimate because they are "necessary and proper" for the Congress to exercise the other powers that are listed here. (also known as the *elastic clause*)

commerce clause

(1.8.3) Congress has the power regulate commerce with foreign nations, Indian tribes, and between states (interstate).

electoral college

(2.1.2) Each state will decide how to choose its own electors who will vote for the president. Each state gets a number of electoral votes equal to its number of senators plus its numbers of US representatives. No senators, representatives, or person holding governmental office under the US can be an elector.

commander in chief

(2.2.1) Commander-in-chief of the military and the army of each of the states when they are called up to serve the US. (Job doesn't mean the same thing today as it did back then)

jury trial

(3.2.3) In all criminal cases aside from impeachment, the trial will be heard by a jury rather than decided solely by the judge.

treason

(3.3.1) Committing this means engaging in war against the United States, or fighting on the side of the U.S.'s enemies, or giving help, support, or assistance to the enemies of the United States. One cannot be committed of this unless there are 2 witnesses that have seen or been present during the actual action of the accused person. Or the person confesses in court in front of a judge and the public.

full faith and credit clause

(4.1) Every state must respect the judgment and documentation of every other state.

extradition

(4.2.2) All wanted persons must be returned to the state that wants them. Example: If you murder someone in Michigan, and move to IN, you are not tried in IN, but in the state you committed the crime (MI). The US has _________ treaties with almost every other country aside from Russia and Cuba.

fugitive slave clause

(4.2.3) If a slave escapes a slave state (South) to a free state (North), the slave is not discharged from slavery and is to be returned back into slavery.

territorial clauses

(4.3.2) Territories that have yet to become states fall under the direct control of Congress. Congress also has the ability to dispose of territories.

guarantee clause

(4.4.1) Every state must guarantee a republican form of government.

Debts clause

(6.1) The new US government established by the Constitution promised to take on all the debts racked up by the older, weaker national government of the Articles of Confederation.

Supremacy clause

(6.2) The following 3 items were the supreme law of the land 1.The Constitution 2.Laws of the national government (when consistent with the Constitution) 3.Treaties (which can be made only by the national government)

Religious Oaths clause

(6.3) No person can be required to take a religious oath for a public office or trust.

dual judiciary

(Article 3) The constitution sets up both federal and state courts. *federalism*

comity

(article 4) Idea that there is a tradition of respect among equal jurisdiction. Equal jurisdictions should respect one another. For example, you can drive with an Indiana license in Illinois.

Amendment Process

*Article 5* 1) Congress proposes with 2/3 vote in each house -> 3/4 of state *legislature* ratify by a vote of 3/4 of the states (*has occurred 26 times*) 2) Congress proposes with 2/3 vote in each house -> 3/4 of state *conventions* ratify by a vote of 3/4 of the states (*has occurred 1 time*) 3) National convention proposes by request of 2/3 of the states->3/4 of state *legislatures* ratify by a vote of 3/4 of the states (*Never Happened* ) 4)National convention proposes by request of 2/3 of the states->3/4 of state *conventions* ratify by a vote of 3/4 of the states (*Never Happened* )

Marbury v. Madison

*Date*: 1803 *Issue*: Was the judiciary independent of politics? *Case Summary*: To Lengthy for Quizlet *Rule of Law/Precedence Set*: judicial review: A power implied in the Constitution that gives federal courts the right to review and determine the constitutionality of acts passed by Congress and State legislatures

Gibbons v. Ogden

*Date*: 1824 *Case Summary*: Inventions are protected by patents but not commercial application of the invention. Enjoined NY (*state* gov) from giving a monopoly over the steamboat line to Robert Fulton, inventor of the vessel. Fulton's invention was protected by a federal (*national* gov) patent, its commercial application was not, patenting encouraged technology but not at the expense of competition. *Rule of Law/ Precedent set*: Congress has the power to regulate interstate commerce, encompassing virtually every form of commercial activity (i.e. radio signals, electricity, telephone messages, the Internet etc.).

Dred Scott v. Sanford

*Issue*: Did a slave become free upon entering a free State? Could a slave—or a black person—actually be entitled to sue in federal courts? Was the transportation of slaves subject to federal regulation? *Date*:1857 *Case Summary*: Dred Scott, a lifelong slave, was taken on military assignments in the 1830s to free states ILL (free state) and WI (free territory, North of MO Compromise) by his master John Emerson. While in WI Scott married another slave and they had a daughter who was born in a free territory (WI). Emerson took Scott and his family back to MO (slave state) and Scott sued for his freedom as well as his family's. *Rule of Law/Precedent Set*: Slaves could not be US citizens and that Congress had no jurisdiction over slavery in the territories. MO Compromise in unconstitutional and the federal government has no right to interfere with the free movement of property throughout the territories.

United States v. Lopez

*Issue*: Does the Gun-Free Zones Act exceed Congress's power? What categories of activity may Congress regulate under its commerce power? *Date*: 1995 *Case Summary*: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm within 90 feet of a school zone. Alfonso Lopez, a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Act. *Rule of Law/Precedent Set*: The GFSZA exceeded Congress' authority under the Commerce Clause. Congress's power to regulate interstate commerce is limited to activities *DIRECTLY* affected the sale, trade, or distribution of goods. Congress later re-passed GFSZA to say that no guns made with parts from another state can be within 90 feet of a school zone. This law has yet to be challenged in the courts.

South Dakota v. Dole

*Issue*: May Congress withhold funds from states that do not maintain a 21 year old drinking age? *Date*: 1987 *Case Summary*: In 1984, the United States Congress passed the National Minimum Drinking Age Act, which withheld 5% of federal highway funding from states that did not maintain a minimum legal drinking age of 21. Those who did maintain the drinking age received a 7% increase in federal highway funding. South Dakota wanted an increase in federal highway funding even though it wouldn't raise its drinking age. South Dakota, which allowed 19-year-olds to purchase beer challenged the law. Elizabeth Dole, Secretary of Transportation, was the defendant. *Rule of Law/Precedent set*: Categorical grants are constitutional because states can refuse them and the federal government should be free to decide how to spend its money.

McCulloch v. Maryland

*Issue*: State versus national power. *Case Summary*: Congress created a national bank that extended onto MD's soil. MD decided to tax the national bank's Baltimore Branch $15k a year. Baltimore refused to pay, so MD sued the head cashier, James McCulloch, for payment. The state courts ruled in favor of MD, so the bank appealed to the US Supreme Court. *Date*: 1819 *Rule of Law and Precedent set*: 1. Supremacy of the national government over the states: as long as the national government behaved in accordance with the Constitution, said the Court, its policies took precedence over state policies. (*Constitutional Supremacy*) 2. The national government has certain implied powers that go beyond its enumerated powers (*Implied Powers Doctrine*)/"necessary and proper" clause: Congress has powers that are not articulated in the Constitution but related to the powers that are enumerated in the Constitution.

Heart of Atlanta v. United States

*Issue*: What is interstate commerce? *Date*: 1964 *Case Summary*: Civil Rights Act of 1964 prohibits discrimination in business of public access (restaurants, hotels, etc.) At this hotel, the owner refused to rent rooms to black and only allowed whites to rent rooms. He believed the Civil Rights Act has no bearing on his hotel since it is intrastate commerce (as in the hotel only had one branch in Atlanta, GA). However, his hotel was located in between four interstate highways. *Rule of Law*: defines Interstate Commerce--whenever a meaningful portion of raw materials, finish product, or consumers cross over state lines, it's interstate.

Federalists

--Background: large landowners, wealthy merchants, professionals --Government preferred: 1) Weaker state governments 2) Strong national government 3) Indirect election of officials 4) Longer terms 5) Government by the elite 6)Expected few violations of individual liberties

Antifederalist

--Background: small farmers, shopkeepers, laborers --Government preferred 1) Strong state government 2) weak national government 3)Direct election of officials 4) Shorter terms 5) Rule by the common man 6) Strengthened protections for individual liberties

Magna Carta

--Beginning of English Constitutionalism in 1215. Rule of Law and limited government emerge. --Rule of Law: Principle of law applies to everyone, even those who govern. --2 ways to limit government are outlined in this document. 1) *Parchment barriers*: writing down of rights -- protection from government. Increases likelihood of respecting those rights. 2) *Constitutional mechanism*: cannot limit vice to limit virtue, but one must limit vice with vice. Madison, "Ambition must be used to counteract ambition..." The secret of good government is "balanced" government.

President

--Can veto congressional legislation --Nominates judges and enforces judicial opinions

James Madison

--Developed the VA Plan --Wanted a strong central government --Co-author of the Federalist Papers --Checks and Balances --Separation of Powers --"Father of the Constitution" --Most prepared for Philadelphia Convention --Jefferson's Secretary of State

Congress

--Holds the purse strings of government and must approve presidential appointments --Can pass laws over the president's veto and can impeach the president and remove him or her from office. --Upper House confirms the president's nominations. Can impeach judges and remove them from office.

diversity of citizenship

--subject matter jurisdiction: Court can only assume power over a claim that the laws of the jurisdiction authorize it to hear. Establishes the jurisdiction of the federal courts. *(3.2.1)* 1) Federal courts can decide cases involving federal law, disputes between different states, and disputes between residents of different states. 2) State courts can hear cases involving state laws and disputes between residents of one state. --Litigants involved must come from different states (or US citizen and citizen of another country): only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court.

Article

A clause or section in a written document such as a treaty, contract, statute, etc _______ 1: Legislative _______ 2: Executive _______ 3: Judicial _______ 4: Comity/Relationship amongst the states _______ 5: Amendment process _______ 6: Supremacy _______ 7: Ratification

3/5 Compromise

A compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the population of slaves would be counted for enumeration purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives. It was proposed by delegates James Wilson and Roger Sherman.

demakratia

A direct democracy where the people make the policy themselves.

mixed government

A form of government that integrates elements of democracy, aristocracy, and monarchy. Britain is a prime example.

bureaucracy

A large, complex organization composed of appointed officials (2.2.2) President nominates all appointed officials of the government, including officers of the executive branch and judges of the judicial branch, though he needs a majority-vote approval by Senate (includes cabinet members, independent regulatory/executive agencies, and government corporations).

executive agreement

A pact made by the president directly with the head of a foreign state/country; A binding international agreement with the force of law but which (unlike a treaty) does not require senate consent

Judicial Review

A power implied in the Constitution that gives federal courts the right to review and determine the constitutionality of acts passed by Congress and State legislatures

Natural Law

A principle/body of laws considered as derived from nature, right reason, or religion and as ethically binding in human society. *Laws above man*

Federalism

A system in which power is divided between the national and state governments. Each government has its own sovereignty and the national and state governments work both independently and interdependently.

Democratic Theory

A theory about how a democratic government makes its decisions. According to Robert Dahl, its cornerstones are: 1) Equality in voting - 1 person 1 vote 2) Effective participation -- citizens must have adequate and equal opportunities to express their preferences throughout the decision making process 3) Enlightened understanding -- a democratic society must be a marketplace of ideas; free press, free speech; citizens must be able to understand issues 4) Citizen control of the agenda-- Citizens should have the collective right to control the government's policy agenda 5) Inclusion-- the gov't must include, and extend rights to, all those subject to its laws. Citizenship must be open to all.

treaty

An agreement or arrangement made by negotiation (2.2.2) President can negotiate treaties with foreign governments, although a two-thirds vote of the Senate is required for ratification.

Social contract

An agreement where we give up some of our absolute freedom and get something in return

privileges and immunities

Article 4, Section 2 Every state must grant the same privileges and immunities to citizens of other states while in their state. Goal: Prohibit states from discriminating against citizens of other states Example: If a Texan visits CA, the Texan will pay the same sales taxes and receive the same police protection as residents of CA. Exceptions: In-state students pay lower tuition than out of state students.

ratification

Article 7 of the Constitution. Constitution only needed 9/13 states to do this in order for the Constitution to become law.

Dirty Compromise

At the Philadelphia Convention, SC's delegates along with other southerners, insisted on protection for the African slave trade in the Constitution. Later the delegates gave Congress the power to regulate international and interstate commerce. SC and the South didn't want the national gov't to regulate interstate commerce because doing so could lead to export taxes that could be used to tax slave labor commodities (tobacco, rice, indigo, etc), and thus indirectly tax slavery. MA didn't want the government to regulate interstate commerce either, but didn't want to deal with slaves. The South will concede to no taxation on exports if Massachusetts agrees to not go against the fugitive slave clause. *interstate commerce* and *fugitive slave clause*

Preamble

Brief introductory statement of the fundamental purposes and guiding principles which the Constitution is meant to serve. It expresses in general terms the intentions of its authors, and is sometimes referred to by courts as evidence of what the Founding Fathers thought the Constitution meant and what they hoped it would achieve. *Gouvernor Morris*

Common Law

British. Law based on tradition In the US, it is known as case law-- a law established by following earlier judicial decisions.

Habeas Corpus

Cannot be suspended unless in times of insurrection or rebellion. Roots in English Constitutionalism. Written due to Shay's Rebellion. Means that you can't be held in jail without facing legitimate charges/hearing by a judge of some kind—there is no such thing as indefinite detention without due legal process. *(1.9.2)*

Enlightenment

Concepts such as freedom from oppression, natural rights, and new ways of thinking about governmental structure came straight from _______ philosophers such as Locke. Montesquieu's idea about the balance of power between three branches of government.

Commerce Compromise

Congress has the power to tax imported goods but cannot tax exports from any state.

executive order

Directive by the President that has the effect of law. Example: Truman desegregating the troops.

classical republicanism

Early theory of democracy that holds that the best kind of government is one that promotes the "*common good*" and the welfare of an entire society. Its characteristics include civic virtue, moral education, and small, uniform communities. Philosophy is based on the fact that man is inherently teachable and trainable.

Block grant

Federal grants given more or less automatically to states or communities to support broad programs in areas such as community development and social services. Provide more flexibility since states and communities have discretion in deciding how to spend the money.

categorical grant

Federal grants that can be used only for specific purposes or "categories," of state and local spending. They come with strings attached, such as nondiscrimination provisions.

impeachment

Formal accusation of of misconduct in office against a public official. (1.2.5) Only the House of Representatives has the power to impeach executive and judicial officials deemed unfit for office. (1.3.6) If the House of Representatives votes to impeach any civil officer, the Senate must serve as judge and jury. If two-thirds of senators vote to convict, the impeached official is removed from office.

Code Law

French. Detailed lists of rules and regulations leaving little room for interpretation. Examples: Tax codes and dress codes. Advantages: predictability and fairness

9th Amendment

Guarantee of rights not listed in the Constitution

Supreme Court

Has the right to check the other branches through judicial review: the right to hold actions of the other 2 branches unconstitutional.

Flexibility

Idea that the Constitution has the ability to be changed over time. Formal change: amendments Informal change: Change what the constitution means without changing the words (i.e. Does commander in chief mean the same thing it does today as it did during George Washington's time?)

Majority Rule and Minority Rights

In a democracy, choosing among alternatives requires that the majority's desire be respected while at the same time guaranteeing that the rights of the minority will not be infringed upon. Basic principles such as freedom of speech and assembly are essential minority rights which the majority cannot infringe on. Shown in the Constitution: 1) All the things the Constitution prohibits Congress from doing (bills of attainder especially) 2) difficulty in passing amendments (Article 5).

bicameralism

Legislature with 2 chambers one upper (Senate) and one lower (House of Representatives).

Bill of Rights

Listing of protections from government. Placing this in the constitution makes it possible for our courts to be a check on the legislature. Helps to develop the habits and appreciation to become part of whom we are.

Checks and Balances

Madison; A feature of the Constitution that limit government's power by requiring that power be balanced among the different governmental institutions. These institutions continually constrain one another's activities in order to avoid abuse of power by any one branch.

Separation of Powers

Madison; A feature of the Constitution that requires each of the three branches of government—legislative (Congress), executive (president), and judicial (courts)—to be relatively independent of the others so that one cannot control the others. Power is shared among these 3 institutions.

Bill of Attainder

Neither Congress nor the States can do this and it has its roots in English Constitutionalism. A law that declares that certain people are guilty of a crime and then imposes some kind of punishment upon them without the person having a trial.

ex post facto

Neither Congress nor the States can do this and it has its roots in English Constitutionalism. Law that retroactively criminalizes a certain act after it has already been committed. In other words, it would allow a person to be prosecuted for doing something that wasn't actually illegal yet at the time they did it. ONLY APPLIES TO CRIMINAL NOT CIVIL ACTS.

titles of nobility

Neither Congress nor the states can give these out. Congress/ States cannot give anyone any titles such as king, prince, earl, baron, duke etc.

Roman Law

Once laws are made available to you, you cannot claim ignorance.

NJ Plan

Plan proposed by William Paterson at the constitutional convention that called for equal representation of each state in Congress.

Reserved Powers

Political powers that are not enumerated or prohibited by the US Constitution, but instead are reserved by the Constitution for the people or the states. (See the 10th Amendment)

Cooperative Federalism

Powers and policy assignments are *shared* between states and the national government. They may also share costs, administration, and blame for programs that work poorly. *Marble Cake Federalism* (mingled responsibilities and blurred distinctions between the levels of government). Involves: shared costs, federal guidelines, shared administration

implied powers

Powers of the federal government that go beyond those enumerated in the Constitution. These powers are typically related to powers already enumerated in the Constitution. (1.8.18)

Enumerated/Expressed powers

Powers specifically addressed in the Constitution, for Congress, these powers are listed in Article I Section 8, and include the power to coin money, regulate its value, and impose taxes.

order of succession

Previously: President->VP->Congress decides *(2.1.6)* Today: President -> VP-> Speaker of the House -> President Pro Tempore-> Secretary of State *(25th Amendment)*

Great Compromise

Proposal by Roger Sherman and William Johnson. Established the Senate--2 members from each state--and the House of Representatives--representation based on the population of each state. Gave more power to people who lived in small states.

Natural Rights

Rights inherent in human beings, not dependent on governments which include life, liberty, and property. The concept was central to English philosopher John Locke's theories about government and was widely accepted among America's founders.

Iron Law of Oligarchy

Robert Michaels: due to human nature, people will fight for power until we have an oligarchy. Power will land in fewer and fewer hands.

platonic myths

Stories we tell that teach a certain virtue like honesty. Plato did not care if the story was true or false.

Delegated Powers

The different *powers granted* respectively to each of three branches of government—executive, legislative, and judicial.

Declaration of Independence

The document recording the proclamation of the second Continental Congress (4 July 1776) asserting the independence of the colonies from Great Britain. (See your notes on the 5 elements/origins of this)

Articles of Confederation

The first constitution of the United States, adopted by Congress in 1777 and enacted in 1781. Established a national legislature, the Continental Congress, but most authority rested with the state legislature.

Limited Government

The idea that certain restrictions should be placed on government to protect the natural rights of citizens. (LOCKE) 1) Governments must provide standing laws so that people know in advance whether their acts will be acceptable. 2) "The supreme power cannot take from any man any part of his property without his consent."

Civilian Control of the Military

The militia is unable to hurt us because they are us. The standing army is well-trained and has its own set of laws. We are able to set up things in our Constitution that makes the military subservient to the people (1.8.12) - House of Representatives is the part of Congress that keeps control of the military by controlling the military's purse strings. Also, (2.2.1) The president is the commander and chief of the military and he is an elected official.

VA Plan

The proposal by Edmund Randolph (created by Madison) giving each state representation in Congress based on the state's share of the American population.

Popular Sovereignty

This principle states that the source of governmental power lies with the people. This belief stems from the concept of the social contract and the idea that government should be for the benefit of its citizens. If the government is not protecting the people, it should be dissolved.

State of nature

Where there are no formal laws or government. The laws of nature govern people; laws are determined by people's innate moral sense.

alien

a resident born in or belonging to another country who has not acquired citizenship by naturalization. Have fundamental rights and constitutional rights, lack *Political rights*. Resident _____ cannot vote, run for office, travel freely, or serve on juries. They also must report their whereabouts to the government.

Dual Federalism

a system of government in which both the states and the national government remain supreme within their own spheres, each responsible for some policies. *layer cake* Example: The national government has exclusive control over foreign and military policy, the postal system, and monetary policy. States are exclusively responsible for schools, law enforcement, and road building.

implicit contract entrance

born into it. Chosen by default (i.e. citizenship)

republic

form of government in which the people select representatives to govern them and make laws. Madison says this refines the public will.

Amendment

formal change to the Constitution

Natural Rights social contract

needs of individual over that of society (Hobbs and Locke)

classical republicanism social contract

needs of society over that of the individual (Cicero/Plato)

tacit contract entrance

no rite of passage--over time you are accepted along with all the benefits and consequences (i.e. making friends)

explicit contract entrance

point in time where one is in/not in; oath; signing a contract (i.e. naturalized citizen)

Rule of Law

principle that the law applies to everyone, even those who govern

agency contract exit

you can exit/leave the contract (LOCKE) Example: citizenship

alien contract exit

you can never leave the contract (Hobbs) Example: secession