Unit 3 United State Government – Constitutional Underpinnings

This chapter is about United State Government – Constitutional Underpinnings.

Articles of Confederation

The Continental Congress passed the Articles of Confederation in 1777 (states approved in 1781). The national government had a unicameral legislature and no executive or judiciary. Challenges: 1) division of power between existing states and new central govt., 2) representation – less populous vs. populous, 3) finances – apportioning war debts, counting slaves for tax purposes, and 4)claims to western lands. Weaknesses: 1) each state retained sovereignty (all powers not specifically given to central govt remained with state), 2)unicameral Congress – each state 1 vote, legislation required 9 votes; 3)no president or executive; 4) no federal court system. ammendment of articles req. majority Congress, unanimous states


feared the Constitution eliminated states’ rights, gave too much power to the president and courts, and failed to protect individual rights; were mostly small farmers, opposed the Constitution, wanted to protect local government, Constitution destroyed states’ rights, gave too much power to president, unrepresentative cause senators indirectly elected, lacked Bill of Rights

Bill of Rights

1789 James Madison wrote 17 amendments, Congress passed 12, by 1791 states ratified 10 known as Bill of Rights; protect rights that Founders cared about (individual rights); through doctrine of incorporation applied to the states and all levels govt. Summary:
1) political process rights; 2) militia/guns; 3) quartering; 4) search & seizure; 5) criminal rights; 6) court procedures; 7)trial by jury; 8)bail/punishment

categorical grants

provide money for very specific purposes (ex: special ed or technology in schools)

Block grants

provide funds broad purposes (lump sum education)

checks and balances

Constitutional provisions that allow each branch of govt some control over the specific actions of the other branches; examples: Congress over pres – Congress must introduce legislation, Congress must enact budget, legislative actions require congress approve, override pres veto by 2/3 vote both houses, impeachment, confirm senior pres appointments, Senate ratify treaties, declare war; Congress over court – ammendments, org. court system, jurisdictions; Pres over Congress – veto, foreign affairs, appointments, bully pulpit, call special session Congress, pardoning; Judicial – review

civil liberties

civil rights and freedoms that provide an individual specific rights

civil rights

class of rights that protect individuals’ freedom from unwarranted infringement by governments and private organizations, and ensure one’s ability to participate in the civil and political life of the state without discrimination or repression.


pact or treaty among individuals or groups, during which they cooperate in joint action, each in their own self-interest, joining forces together for a common cause

commerce clause

Congress has the constitutional authority to regulate interstate commerce. The Supreme Court has begun limiting the definition of interstate commerce

concurrent powers

powers in nations with a federal system of government that are shared by both the State and the federal government.

Connecticut Compromise/Great Compromise

Constitutional Convention decided representation based on 1) population for House of representatives, popularly elected, and 2) states for the Senate – each have 2 Senators, chosen by State Legislatures, all revenue bills originated in house, and compromise was major setback for larger states


document governing supreme law of the United States of America; separation of powers – federal government is divided into three branches: the legislative (bicameral Congress); the executive (President); and the judicial (Supreme Court and other federal courts). Articles Four, Five and Six entrench concepts of federalism, describing the rights and responsibilities of state governments and of the states in relationship to the federal government. it has been amended twenty-seven times. In general, the first ten amendments (Bill of Rights) offer specific protections of individual liberty and justice and place restrictions on the powers of government. The majority of the seventeen later amendments expand individual civil rights. Others address issues related to federal authority or modify government processes and procedures.

Constitutional amendment

2 methods (article V), only used process – Congress proposes amendments and states ratify them, other method not used – 2/3 state legislatures call constitutional convention. informal amendments come thru Supreme Court decisions and changes in political practice; framers intentionally made ratifying amendments difficult so only overwhelming support become law. only 27 ratified in 200 years

Constitutional democracy

a form of government in which representative democracy operates under the principles of liberalism. It is characterized by fair, free, and competitive elections between multiple distinct political parties, a separation of powers into different branches of government, the rule of law in everyday life as part of an open society, and the equal protection of human rights, civil rights, civil liberties, and political freedoms for all persons. To define the system in practice, liberal democracies often draw upon a constitution, either formally written or uncodified, to delineate the powers of government and enshrine the social contract. After a period of sustained expansion throughout the 20th century, liberal democracy became the predominant political system in the world.

cruel and unusual punishment

The Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes. The amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The due process clause of the Fourteenth Amendment to the U.S. Constitution bars the states from inflicting such punishment for state crimes, and most state constitutions also prohibit the infliction of cruel and unusual punishment.

Declaration of Independence

statement adopted by the Continental Congress meeting at Philadelphia, Pennsylvania on July 4, 1776, which announced that the thirteen American colonies, then at war with Great Britain, regarded themselves as thirteen newly independent sovereign states, and no longer a part of the British Empire. Instead they formed a new nation—the United States of America. John Adams was a leader in pushing for independence, which was unanimously approved on July 2. A committee of five had already drafted the formal declaration, to be ready when Congress voted on independence. The term “Declaration of Independence” is not used in the document itself.


the return of power and authority to state or local governments by the national govt. early 1990’s to present period of Devolutionary federalism

double jeopardy

procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction

elastic clause

provision in Article One of the United States Constitution, section 8, clause 18: The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Electoral College

compromise worked out by committee at Constitutional Convention. each state given electors equal to its representation i Congress (min. 3 electors); candidate with most electoral votes became president, candidate with second most became vice president. later changed to running mates (pres & vp)

enumerated powers

list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitution. The Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

equal protection clause

the constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness.

establishment clause

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first part of this provision is known as the Establishment Clause, and the second part is known as the Free Exercise Clause.

exclusionary rule

The principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect’s right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.


a group of people connected by a shared belief or opinion within a larger group


a government in which power is divided between national and local governments. US govt is a federal system that spreads legitimate political authority among national, state, and local govts. Unity: pro – national interest binding all states, con – can seem coercive (Roe v Wade); Diversity: pro – state and local experiments, con – allows injurious local preferences (slavery); Inefficiency: pro – framers designed inefficiency into govt so no level of govt could dominate, become tyrannical or abridge citizen rights, con – conflicting laws different levels govt, inefficient; Administration: pro – natl govt experts, state resemble residents, con – natl aloof, state incompetent; Participation: pro – opportunity citizens participate (vote), con – citizens often don’t participate

Federalist No. 10

Federalist No. 10(Federalist Number 10) is an essay written by James Madison and the tenth of the Federalist Papers, a series arguing for the ratification of the United States Constitution. It was published on November 22, 1787 under the pseudonym, Publius, the name under which all of the Federalist Papers were published. Federalist No. 10 is among the most highly regarded of all American political writings. No. 10 addresses the question of how to guard against “factions”, or groups of citizens, with interests contrary to the rights of others or the interests of the whole community. Madison argued that a strong, big republic would be a better guard against those dangers than smaller republics—for instance, the individual states. Opponents of the Constitution offered counterarguments to his position, which were substantially derived from the commentary of Montesquieu on this subject. Federalist No. 10 continues a theme begun in Federalist No. 9; it is titled, “The Same Subject Continued: The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection”. The whole series is cited by scholars and jurists as an authoritative interpretation and explication of the meaning of the Constitution. Jurists have frequently read No. 10 to mean that the Founding Fathers did not intend the United States government to be partisan.

Federalist Papers

(1787-1788) 85 essays published anonymously under name “Publius”; written by Alexander Hamilton (50), James Madison (30), John Jay (5); written to convince NY state convention to ratify Constitution (large state ratification lead to legitimacy); the papers argued: Constitution would create prosperity and wealth, governmental structure protected rights, checks and balances would keep government from violating rights, president congress & courts were limited to their enumerated powers, bill of rights not necessary


One section of Constitutional Convention; wanted strong central government and minimal role for citizens generally, represented educated property owners, supported Constitution; accused of safeguarding order, protecting property, and not increasing freedom; successful because better organization, more resources, good media campaign, supported by important people throughout country, opponents presented no alternative

free exercise clause

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first part of this provision is known as the Establishment Clause, and the second part is known as the Free Exercise Clause.


House has the power to impeach govt officials and Senate to decide guilt or innocence on charges; stats: judges (13 impeached, 7 convicted); presidents (2 impeached, 0 convicted)

implied powers

those powers authorized by a legal document (from the Constitution) which, while not stated, seem to be implied by powers expressly stated. In the case of the United States government, implied powers are the powers exercised by Congress which are not explicitly given by the constitution itself but necessary and proper to execute the powers which are

inherent powers

Inherent powers are powers held by a sovereign state. In the United States, the President derives these powers from the loosely-worded statements in the Constitution that “the executive Power shall be vested in a President” and the president should “take care that the laws be faithfully executed” (defined in practice, rather than by constitutional or statutory law).

judicial review

power of courts to declare laws unconstitutional, not mentioned in Constitution. In Marbury v. Madison (1803), the Supreme Court ruled that it had the power to declare laws unconstitutional because it is the duty of judges, not legislators or executives, to interpret the law

limited government

In a limited government, the power of government to intervene in the exercise of civil liberties is restricted by law, usually in a written constitution. It is a principle of classical liberalism, free market libertarianism, and some tendencies of liberalism and conservatism in the United States. The theory of limited government contrasts, for example, with the ideal that government should intervene to promote equality and opportunity through regulation of property and wealth redistribution. As discussed in the Federalist Papers, the idea of limited government originally implied the notion of a separation of powers and the system of checks and balances promoted by the U.S. Constitution. This understanding of limited government maintains that government is internally limited by the system of checks and balances as well as the Constitution itself, which can be amended, and externally through the republican principle of electoral accountability. Such an understanding of limited government, as explained by James Madison, does not place arbitrary and ideologically biased parameters on the actions of a government thus allowing government to change as time demands

John Locke

English philosopher and physician regarded as one of the most influential of Enlightenment thinkers and known as the “Father of Classical Liberalism”. Considered one of the first of the British empiricists, following the tradition of Sir Francis Bacon, he is equally important to social contract theory. His work greatly affected the development of epistemology and political philosophy. His writings influenced Voltaire and Rousseau, many Scottish Enlightenment thinkers, as well as the American revolutionaries. His contributions to classical republicanism and liberal theory are reflected in the United States Declaration of Independence.


A judicial command, order, or precept, written or oral, from a court; a direction that a court has the authority to give and an individual is bound to obey.

marble cake federalism

a form of federalism where there is mixing of powers, resources, and programs between and among the national, state, and local governments. Federalism is a system of government in which power is divided between a central government and regional or sub-divisional governments. In marble cake federalism there will be an intermingling of all levels of government in policies and programming. This is also known as co-operative federalism.

“necessary and proper” clause

The Necessary and Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause.) is the provision in Article One of the United States Constitution, section 8, clause 18:The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

prior restraint

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place. An alternative to prior restraint is to allow the expression to take place and to take appropriate action afterward, if the expression is found to violate the law, regulations, or other rules.

procedural due process

Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law.


representative democracy, government whose authority is obtained and held, directly or indirectly, through free elections in which all competent adult citizens are allowed to vote. can be organized as unitary, federal or confederated govt.

separation of church and state

The separation of church and state is the distance in the relationship between organized religion and the nation state.

separation of powers

dividing authority among 3 branches prevented any single institution from accumulating excess power

shared powers

a power shared by both the federal and state governments, ex: taxes

substantive due process

The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties.

Supremacy clause

the major assertion of the power of the central government over the state governments. 1) laws and treaties approved by Congress are the supreme law of the land, and 2) if federal and state laws confict, federal laws prevail

Tenth Amendment

the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Three-Fifths Compromise

The Three-Fifths Compromise was a compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the enumerated population of slaves would be counted for representation purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives. It was proposed by delegates James Wilson and Roger Sherman.

unfunded mandates

a law Congress imposes on state or local governments without providing the money needed for implementation

writ of habeas corpus

latin for “you should have the body”, The right of protection against unlimited imprisonment unless formally charged by a court. One of the rights sought by the British Colonists in early America.