CHAPTER 3
THE LIVING CONSTITUTION
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LIMITED
GOVERNMENT PAY
-
-
POPULAR
SOVEREIGNTY
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SEPARATION OF
POWERS
o
LEGISLATIVE
BRANCH
o
EXECUTIVE BRANCH
o
JUDICIAL BRANCH
-
CHECKS AND
BALANCES
o
INTENDED TO MAKE
SURE ONE BRANCH OF THE GOVERNMENT DOESN’T BECOME DOMINANT
o
CHECKS ON THE
EXECUTIVE (EXECUTES THE LAW)
§
IMPEACHMENT
– LEG. CHECK
§
JUDICIAL REVIEW
– JUD. CHECK
§
RATIFICATION OF
TREATIES (2/3) VOTE AND APPOINTMENTS
(majority) VOTE – LEG CHECK
§
CONTROL OF PURSE
STRINGS – LEG. CHECK
o
CHECKS ON THE
LEGISLATURE (MAKES LAW)
§
VETO – EX. CHECK
§
JUDICIAL REVIEW –
JUD. CHECK
3/2
o
CHECKS ON
JUDICIARY (INTERPRITS LAW)
§
IMPEACHMENT –
LEG. CHECK
§
CHANGE # WHO SIT
ON THE COURT – LEG. & EX. CHECK
·
CONGRESS CAN
DETERMINE THE # WHO SIT ON THE BENCH
·
THE PRESIDENT CAN
APPOINT JUDGES TO HIS LIKING
o
§
THE MOST
DIFFICULT BRANCH TO CHECK
-
JUDICIAL REVIEW
o
THE ABILITY OF
THE COURT TO DETERMINE THE CONSTITUTIONALITY OR UNCONSTITUTIONALITY OF AN ACT
OF CONGRESS OR OF THE PRESIDENT
o
NOT FOUND IN THE
CONSTITUTION
§
MARBURY
V. MADISON
-
DIVISION OF
POWER
o
NATIONAL, STATE,
AND LOCAL
o
SUCCEEDS IN
CREATING A STRONG NATIONAL GOVERNMENT AND AT THE SAME TIME PRESERVING THE
EXISTING RIGHTS OF THE STATES AND THE CONCEPT OF LOCAL SELF GOVERNMENT
§
NATIONAL
GOVERNMENT’S MAIN FUNCTION WAS TO FACILITATE TRADE
§
STATE GOVERNMENT
WAS DOMINANT UP UNTIL THE 1930’S
o
CREATES DUAL CITIZENSHIP – Def – CITIZEN OF
STATE AND CITIZEN OF NATION
3/3
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FORMAL
AMENDMENT
o
PROPOSALS
§
2/3 VOTE OF
CONGRESS
§
SPECIAL CONVENTIONS
IN 2/3s OF THE STATES
o
RATIFICATION
§
3/4s OF STATE
LEGISLATURES
§
SPECIAL
CONVENTION CALLED BY 3/4s OF THE STATES
o
27 FORMAL
AMENDMENTS
-
INFORMAL
AMENDMENT
o
THIS HAS BEEN
MORE INFLUENTIAL IN CHANGING GOVERNMENT THAN HAS FORMAL AMENDMENT
o
DIRECT LEGISLATION
§
CREATION OF THE
FEDERAL COURT SYSTEM
§
INTERPRETATION OF
THE COMMERCE CLAUSE
o
EXECUTIVE
INTERPRETATION
§
EMERGENCY WAR
POWERS – COMMANDER IN CHIEF
§
EXECUTIVE
AGREEMENTS – CHIEF OF STATE
o
JUDICIAL
INTERPRETATION
§
JUDICIAL REVIEW
o
PARTY
PRACTICES
§
NATIONAL PARTY
CONVENTIONS
§
DIRECT PRIMARIES
3/4
o
CUSTOM
§
WASHINGTONIAN
TRADITION OF RETIRING AFTER 2 CONSECUTIVE TERM
§
FORMALIZED INTO
LAW BY THE 22nd AMENDMENT
§
SUCCESSION OF
V.P. TO NOT ONLY THE DUTIES BUT ALSO THE OFFICE OF THE PRESIDENT
·
JOHN TYLER 1st
V.P.TO SUCCEED TO THE PRESIDENCY
·
FORMALIZED BY THE
25th AMENDMENT
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GENERAL
INFORMATION ON AMENDMENTS
o
IN ARTICLE V
THERE IS A CAVEAT TO THE AMENDING PROCESS
§
NO AMENDMENT
SHALL BE PROPOSED THAT DENIES EQUAL REPRESENTATION IN THE SENATE
·
THIS APPEASED THE
SMALL STATES
o
A REASONABLE TIME
FOR THE AMENDING PROCESS IS CONSIDERED TO BE 7 YEARS
o
4 AMENDMENTS HAVE
OVERTURNED SUPREME COURT DECISIONS
§
11, 14, 16 26
§
IN THE ABSENCE OF
STATUTORY LAW, OFTEN BENCH MADE LAW WILL FILL THE VOID
o
THERE CONTINUES
TO BE A FEAR THAT IF A SPECIAL CONVENTION IS CALLED FOR PURPOSES OF PROPOSING
AN AMENDMENT A “PANDORA’S BOX” WILL BE OPENED
§
THE ENTIRE
CONSTITUTION WILL BE UP FOR GRABS