The Declaration of Independence

“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the

Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundations on such Principles, and organizing its Powers in such Forms, as to them shall seem most likely to effect their Safety and Happiness.”

Constitution (Preamble)

“We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, 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.”

Federalist No. 10[The trouble with majority rule]

“Complaints are everywhere heard…that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. (Rossiter, 1961, 77)”

Federalist 10 (continued)

Factions: “Citizens united by a common impulse of passion or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Two cures: remove causes, or control effects

Causes: liberty and diversity, unequal distribution of property.

“A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government. (Federalist 10, Rossiter, 79)”

Federalist No. 51

“Ambition must be made to counteract ambition” (Rossiter, 322)

“If men were angels, no 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.” (Rossiter, 322)

Checks and Balances (No. 51)

Legislature: Two branches, differentiated by “modes of election and different principles of action. (Rossiter, 322)”

Executive: fortified powers, ltd veto power.

Federalism: division of powers between national, state, and local levels and various departments leads to “double security:” each government controls the other, while each is controlled by itself.

Federalist 51 (minority rights)

“Whilst all authority in [the government] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority (324).”

“The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever...

Federalist 78 (the judiciary)

...It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. (Rossiter, 465)”– The judiciary is the weakest branch and not a

threat to the “general liberty of the people”– Courts of justice (via judicial review) are the

“bulwarks of a limited Constitution against legislative encroachments. (469) ”

Anti-Federalist No. 51Do Checks and Balances Really Secure the

Rights of the People? Aristocrotis

Concerns:– Elections will be controlled by the legislature– Move from ballots to viva voce elections– Government will impose and collect taxes– Federal government can raise and support

armies– President will be appointed by Congress– Language: filled with double meanings and no

meanings

“The congress having thus disentangled themselves from all popular checks and choices, and being supported by a well disciplined army and active militia, will certainly command dread and respect abroad, obedience and submission at home…America will then be great amongst the nations and princess amongst the provinces. Her fleets will cover the deserts of the ocean and convert it into a popular city; and her invincible armies overturn the thrones of princes. (p. 4, www.wepin.com/articles/afp/afp51.html)”

How well does the system work?

Major Tradeoffs– efficiency versus deliberation– responsiveness versus representativeness– national versus parochial considerations

Democracy fosters deliberation, representation, and the promotion of local over national interests.

Can the system handle complex problems?

Complex Public Policy Problems– require deliberation and speed– but may involve problems that are technically

or politically intractable• intractable: cannot be moved or managed;

irresolvable

What the Federalist Papers say:

No. 23 Hamilton (Rossiter, 153)“The principal purposes to be answered by union are

these--the common defense of the members; the preservation of the public peace, as well as against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”

Federalist No. 23 (continued)

“the means ought to be proportioned to the end”

“government ought to be clothed with all the powers requisite to complete execution of its trust”

Federalist No. 70 Hamilton (Rossiter, 424)

“The ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers.”

“The ingredients which constitute safety in the republican sense are a due dependence on the people and a due responsibility.”

Federalist No. 70 Hamilton (Rossiter, 424)

“That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

Federalist No. 70 Hamilton (Rossiter, 426)

“In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.”

Constitutional Parameters

Complex problems in the jurisdiction of the Legislature will be slow-moving and deliberative.

Complex problems in the jurisdiction of the Executive Branch will be addressed with greater speed and efficiency.

Complex problems that require both branches and undertaken in divided government may go unresolved.

Bill of Rights

Establishment and Free Exercise Clauses

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Right to Bear Arms

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Quartering of Soldiers

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Search and Seizure

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Rights of Accused and Takings

Amendment VNo person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Due Process

Amendment VIIn all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Common Law

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Cruel and Unusual Punishment

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Rights Retained by the People

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Rights Reserved to the States

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

(Source of Police Powers)