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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