Key Principles of the Constitution: Federalism and the Separation of Powers

1. Key Principles of the Constitution: Federalism and the Separation of Powers Consider: Are people naturally “good” or “bad”? • Homework: • Wilson (39-46) • Woll: How Not To Read the Constitution (31-40) and Federalist 44 (61-63)

2. Key Principles of the Constitution: Federalism and the Separation of Powers • Homework: Wilson, Chapter 3 (49-59); Woll, “McCulloch v. Maryland” (75-79), “Gibbons v. Ogden” (79-84) “US v. Morrison” (84-94), and “Gonzales v. Raich” (94-97)

3. “Madisonian” Principles of Gov’t in the Constitution • Popular Sovereignty – • power to govern belongs to the people, gov’t based on the consent of governed; • Where does this idea come from? • Separation of Powers – • division of gov’t between branches: executive, legislative and judicial • Origin of this idea? • Checks and Balances – • a system where branches have some authority over others • Limited Government – • gov’tis not all-powerful, and it does only what citizens allow • Federalism – • division of power between central government and individual states

4. Separation of Powers Montesquieu credited with the original theory Excerpt from The Spirit of the Laws “In every government there are three types of power; the legislative (lawmaking); the executive (law-enforcing), and the judiciary (law-interpreting). When the legislative and executive powers are united in the same person, there can be no liberty; since the monarch could enact tyrannical laws, and execute them in a tyrannical manner. Again, there is no liberty if the power of judging is not separated from the legislative and executive powers. If it were joined with the legislative power, the liberty of the people would be exposed to arbitrary control, for the judge would then also be the legislator. If it were joined to the executive power, the judge might behave with all the violence of an oppressor. There would be an end of every thing were the same man, or the same body (whether of the nobles or of the people) to exercise those three powers: that of enacting laws, that of executing these laws, and that of judging the crimes of individuals.”

5. The US system of Separated powers

6. The Japanese system

7. Madison’s Arguments in Fed 47, 48 and 51 • Madison addresses the “separation of powers” in the Constitution in each of these essays. • What is his argument that in fact a “blended” separation of powers is more desirable than a “distinct” separation? • Each will have some control over the others, and can check them • How does the phrase, “Ambition must be made to counteract ambition” apply to this argument?

8. Madison in Federalist 51 “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

9. Constitutional Reform and Amending the Separation of Powers