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					          Today’s Lecture:




               Last Supper




Session                      Topic(s)


 25
                     Review


 A Parliamentary System for Federal Power?
-- To some extent, one can make an argument that we no
longer have a section 8 to Article 1 if the Constitution
-- To some extent, you can say that it is been sort of washed
away, and that we really have a kind of parliamentary system
Article I – Powers of Congress

       Section 8             “Do-All Clause”

• power to Regulate Commerce
• power to Spend for General Welfare
• power to Punish Piracy on the High Seas
• power to Regulate the Armed Forces
• Coin and Borrow Money
• Etc., etc,
• Etc., etc,
  Congress has the power to …
                                                  “society”
                                  the General Welfare
  “Congress shall have the Power to regulate Commerce with
  foreign Nations, and among the several States, and with the
  Indian Tribes”




11/12/2010             Copyright, Sean Wilson. 2007             4
                  The Big Picture


Federal Power

   -- When we started Part II, the 1787 Constitution only
   allowed the Federal Government the powers provided for I
   the laundry list
   -- When constitution first begins,
   Uncle Sam sort of looks like this:
                  The Big Picture


Federal Power

   -- When we started Part II, the 1787 Constitution only
   allowed the Federal Government the powers provided for I
   the laundry list
   -- When constitution first begins,
   Uncle Sam sort of looks like this:
   -- And when Part II is over, it now
   looks something like this:
   -- It’s the same exact document;
   never been amended
                   The Big Picture


Social Transformation

-- One of the things to keep in mind is how the world changed
-- Don’t confuse politics with sociology. The two are separate
phenomena
-- Think about what it was like to live in the horse-and-buggy
commerce-clause era (think about it)
(no telephones, televisions, cars, ipods, internet. Cellphones,
airplanes, etc)
(substantial barter economy; subsistence-plus farming)
                  The Big Picture


What we have just seen:

   Social Transformation
             the things to keep in mind is how the world
   -- One of“Local”
   changed
            1. In this world, most of what The two is “local.”
   -- Don’t confuse politics with sociology.happens are
   separate phenomena
            2. You don’t begin to really have production for
               distribution and sale live in the horse-and-
   -- Think about what it was like to (national economy) until
   buggy commerce-clause era (think about it)
               the Railroads arrive and industrialization takes
               place
   (no telephones, televisions, cars, ipods, internet.
   Cellphones, airplanes, etc)
           3. Then, you have the entire planet begin to get
                barter economy; subsistence-plus farming)
   (substantial smaller and smaller
“The National economy”

1. In an interdependent world, it is much more
   difficult to be isolated

2. Because we are more interdependent, the
   power over interdependency has grown


                  Interdependency
                    The World
                   The Big Picture


Regime Politics
-- Each political generation that came to dominate American
politics ended up stamping the Court with the power that its
generation wanted the federal government to have
-- Federalists stamped it; Agrarian ideology pulled it back
-- Laissez faire stamped it
-- But FDR, it seems, ended the stamping process
   Reagan-Nixon conservatives tried to stamp it, but they
   walked away.
                                 Question:
                      Why? Why don’t we play football with
                       the commerce power any longer?
                   The Big Picture


Why the football ended
-- There are too many areas where Congress enacts general-
welfare legislation:
   (e.g., The federal police state, the environment, poverty,
   health and safety, etc.)
   • It is very hard to lay a rule down that would exclude gun-
   free school zones or tort actions (personal injury lawsuits)
   but not the federal police state or other sorts of legislation.
   • In a sense, the rule wouldn’t be workable
       (would resemble a construction, something fake)
   • Active government arrived in the 1900s because of the
   change in culture.
                   The Big Picture


Law and Society
-- Active government arrived in the 1900s because of the
change in culture.
   • Law must fit society for law to have integrity
   • if law bears no meaningful relationship to culture/society, it
   cannot work.
             Conceptualizing Hamilton



              Congress
              Executive
               SocietyDoesn’t happen this way

               Courts




11/12/2010                Copyright, Sean Wilson. 2007.   13
                               Conceptualizing Hamilton



             Congress
             Executive
          Society
Doesn’t happen this way either!
              Courts




11/12/2010               Copyright, Sean Wilson. 2007.    14
                   The Big Picture


Law and Society

     Presidency

-- If we had completed Part III of the course (semester course),
we would have seen a similar dynamic with respect to the
Presidency
-- The office of the presidency is not nearly as it was in agrarian
culture.
-- There are all kinds of new innovations that expanded power
beyond those specifically listed in Article 2.
   (Article 2 doesn’t give the president many powers at all)
Sources of Power


                   PRESIDENT



Emergency                        Article II
Powers                           Powers


  Statutory                       Implied
  Delegated                       Article II
  Powers                          Powers

                               Executive Agreements
                               Executive Privilege
                                ???
 Emergency Power
    Korematzu

      Quirin
Civil war cases
Law and Society

     Presidency      Policy leadership

-- The president now introduces up to 80% of the legislation
that Congress passes. Congress is left reacting to executive
power rather than dictating to it.
-- The president is now the most important policy institution.
Sometimes called the “chief legislative office” by political
scientists.
-- This was not the way the framers created the institution.
(non-partisan, non-popular elections of people having
esteemed credentials).
    From an “internal” point of view …

                           President
                           Congress
                           Judiciary

                  States                     Feds




            … The feds have to become stronger

                        Compare: Prime Ministers in
                        Parliamentary Systems

1/18/2007                  (C) Copyright Sean Wilson. 2007.   19
                   The Big Picture


Law and Society

  Other Constitutional Development

-- It’s not just the federal government and the presidency that
have changed. Consider:
   • Electoral College
                                      Cultural changes
   • Political Parties
   • The Administrative State (bureaus)
   • Voting & Democracy
   • Liberties (different today versus 1787)
   • The Senate
                  The Big Picture


Structural changes in the Constitution
   -- Consider what we have done to the constitution:
      • direct election of senators
      • direct election of the president
      • democratization of the vote
      • democratization of the primaries
The American Experiment


                 Bicameral Assembly
PRESIDENT        SENATE              HOUSE       JUDICIARY




ELECTORAL
 COLLEGE




                STATES

11/12/2010         Copyright, Sean Wlson. 2007               22
The Point
 The American Experiment
1. It is logical that the status of the states eroded as the people
   became more significant

    Remember
2.PRESIDENT something else: the Virginia Plan would have given a
                        SENATE            HOUSE            JUDICIARY
    general welfare power to the feds. Relevant elites in post-colonial
    culture almost went for that. It is not a stretch to think that in
    today’s world the New Deal might fit the Constitution’s new
    architecture better
 ELECTORAL
  COLLEGE




                       STATES

  11/12/2010              Copyright, Sean Wlson. 2007                 23
                      The Big Picture


Shared-Power Logic
-- A strict interpretation of Section 8 really began to erode when
Taney created the idea of shared powers for regulating
commerce.
-- consider the strict logic:
        my powers                   your powers

          -- laundry list               -- all the rest
          (a, b, c)                     (10th Amendment)
                    The Big Picture


Shared-Power Logic
-- Taney comes along and says…
                                  share it!
                       Economy


      my powers                   your powers

        -- laundry list               -- all the rest
        (a, b, c)                     (10th Amendment)
The Question:

1. If you can share The Big Picture
   the economy, can
   you share the
     Shared-Power
   police power? Logic
    -- Taney comes along and says…
                                        share it!
                          Economy


           my powers                    your powers

            -- laundry list              -- all the rest
            (a, b, c)                    (10th Amendment)
                              “Police
      health, safety          Power”     share it?
       and welfare
The Question:

1. If you can share The Big Picture           Comments?
   the economy, can
   you share the
     Shared-Power
   police power? Logic
    -- Taney comes along and says…
                                        share it!
                          Economy


           my powers                    your powers

            -- laundry list              -- all the rest
            (a, b, c)                    (10th Amendment)
                              “Police
      health, safety          Power”     share it?
       and welfare
                 Con Development


basic idea
  -- you’ve just seen a con development class
  -- idea: show you how constitutional ideas developed
  over time
  -- argument: gives you better context about
  constitutional issues
  -- idea is NOT to get you ready for the bar exam.
                    Con Development


  what you missed
    -- Aside from part-III (executive) …
         there is another course that focuses on the
         development of the Bill of Rights.




powers                         liberty



 “Constitution Proper”                     Bill of Rights
                  Con Development


what you missed
  -- Liberty course develops the other side of the story
  -- It’s an important companion to this story
  -- Class will be offered when we go to semesters.
                    Course Feedback


website
-- course webpage is a good place to leave comments for
future enrolling students

rate my professor
11/12/2010   Copyright, Sean Wilson. 2007.   32
                   Evaluations


one question
  -- “course materials contributed to my learning”
     (includes the website)

    please make comments

     volunteer?

				
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posted:9/27/2010
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