THE LIVING CONSTITUTION

Chapter 2

I. Introduction

A. Natural Law- B. Constitution is a supreme and

binding law that grants and limits power

II. Checking power with power

A. Separation of powers.

B. Checks and balances.

C. Modifications of Checks and Balances

1. The rise of national political parties.

2. Expansion of the electorate and changes in electoral methods.

3. Establishment of agencies deliberately designed to exercise legislative, executive, and judicial functions.

4. Changes in technology.

5. The emergence of presidential power.

Interpreting the Constitution

Judicial interpretation.

Presidential practices.

Custom and usage.

III. Judicial review and the “guardians of the Constitution”

A. Origins of judicial ReviewFramers did not specifically provide for judicial review

B. Marbury v. Madison(1803)1. The Court could not enforce an unconstitutional law2. Chief Justice John Marshall reasoned that judges should interpret the Constitution, not the President or Congress.

Marbury v. Madison contin…

3. Result of case: Judicial review became established

4. A single person may challenge the results

D. The British System

1. Constitutional system without checks and balances

2. Members of the House of Commons have almost complete constitutional power

IV. The Constitution as an Instrument of Government A. Congressional

elaboration/Impeachment and removal

1. laws, rules of procedure, practices of Congress

2. Example: Impeachment & Removal

a. Article 1 gives the House power to bring impeachment charges, and the Senate tries all impeachment cases(conviction by 2/3 vote)

b. Chief Justice presides.

c. Punishment: removal, disq. from pub. Office

d. Still held liable to the law after removale. Impeachment not pardonable offense for a president

B. Presidential Practices

1. Bold exercise of power by individuals a. Executive order b. Executive privilege c. Impoundment

2. Extraordinary circumstances d. Commander in Chief role e. Foreign & economic crises

Executive Action and Court DecisionsExecutive Action

Presidential actions , such as the use of the military under the power of commander in chief.

Executive order-same force as law An executive agreement is a pact made by

the President directly with the head of a foreign state. No check by Congress

C. Custom and Usage

1. Political Parties 2. expansion of suffrage 3. Televised campaigns, debates

Term Limits: Custom

D. Judicial Interpretations 1. Social and Economic changes

reflected in interpretational changes/decisions by the Supreme Court.

2. This prevents constant formal amendments

3. Unlike inflexible state constitutions

Court Decisions: Informal

Woodrow Wilson said the Supreme Court is “a constitutional convention in continuous session.”

Judicial Review

V. Changing the Letter of the Constitution

Prevailing theory-The Constitution should not change as an expression of basic and timeless personal liberties but should adapt to changing conditions(amendment process).

A. Proposing Amendments

1. Method by a 2/3 vote of both houses of Congress(only method used thus far) a. Congress has proposed 31

Amendments b. Increasing number of congressional

attempts at constitutional amendments . Example: Balanced Budget Amendment

c. Popularity of proposing amendments is due to trying to make a more responsive system

d. The Twenty-seventh amendment took 203 years.

2. Method by a convention called by Congress at the request of the legislatures in 2/3 of the states( has never been used).

C. Ratification Politics

1. The Equal Rights Amendment (passed by Congress in 1972) a. Amendment fell three states short of

ratification b. Amendment became embroiled over

draft, labor and abortion issues. c. Was extended by Congress until

1982, but still fell 3 states short2. Gregory Watson started ratification

movement for 27th Amendment.