Federalism

We’re at the federal court house in San Francisco California. About a mile up the road, the Ninth Circuit Court of Appeal which hears all Federal appeals from Alaska to Arizona. As you recall, in episode one, we asked the essential question who has power and where does it come from? In this episode, we’re going to take a look at the guts of the constitution, and the philosophy behind it. We’re going to see how the constitution addresses the problems of the Articles of Confederation.

Now just for fun right now, I’d like to ask you a few questions. So I’d like you top press pause, go to your bonus materials and find in episode two, the questions called the great eight. You think you understand the constitution, give them a try and then we’ll see what happens. Let’s go back inside.

So we’re back inside and we’re going to consider our essential question, who has power and where does it come from? In this unit, the second part of our foundations unit, you’re going to be able to take a look at the guts of the constitution Articles 1, 2, 3, 4, 5, and 6. We’re also going to look at the Enlightenment philosophers that formed the foundation of the constitution. When you’ve had a chance to go through this and you feel comfortable with it, you’re going to be able to put these in your tool belt. I’m sure you’ll be able to use them on your exam.

Let’s talk a little bit about the opening philosophy. In 1651, in a time immediately after the horrors of the English civil war, and watching bodies blown apart, Thomas Hobbes writes his masterpiece "Leviathan", the sea monster. In it, he talks about the selfishness and the wickedness of man. His conclusion is that, because of these things that government needs absolute power in order to check the darkest impulses of man.

Well, less than 40 years later, John Locke writes his "Second Treatise of Civil Government". You’re probably well aware of his concepts here. Locke does a 180 from Hobbes and he says that people are born with natural rights. They have the right to life, liberty and property. He says that government is formed in order to ensure this. You probably also know by now, that many of the framers of the constitution actually had Locke’s book in their sacks and read from that constantly in the summer of 1787.

In 1748, the Baron de Montesquieu, Charles de Montesquieu writes "The Spirit of the Laws", pretty thick book here. He adds to this argument about the separation of powers. In it, he takes the starting point from Hobbes, and he says yes man is basically selfish and wicked, but the only way to check absolute power is by giving concurrent absolute power. Power checks power. He begins to talk about the idea of Checks and Balances that becomes part of the American constitution.

Soon after that Jean-Jacques Rousseau writes about the natural rights of men and he’s fervently in favor of Civil rights, civil liberties; the ability to speak, the right to privacy. It is these last three philosophers; Locke, Montesquieu and Rousseau, who are the core of the philosophy behind the constitution.

The constitution starts with the idea of separation of powers. Article 1 gives powers to the Congress. Article 2 gives powers to the president, also limits the powers of both of these people. But let’s see how this plays out. Number five, let’s start with question number five. I asked you to be able to say who had the power to declare war? Did you get that one right? It’s actually the Congress. You’ll find that in Article 1. If you actually said that it was the president, you’re probably thinking about the president’s power to be the commander-in-chief. It’s a check and a balance to that power. Madison in particular, argued that the power should go to Congress. He said he feared greatly the idea that one man, a president, or a king, could begin a war. Gives you something to think about.

How about the question about the National bank? Did you get that one? That would be question number four. Actually that one might be just a little bit harder, but it’s actually found again in Article 1. Article 1, section 8 gives us something that is known as the elastic clause. The words in the constitution saying it’s the necessary and proper clause. That Congress has the power to make all laws that are necessary and proper.

Well, Alexander Hamilton argued that for the United States in its infancy, it certainly needed to be able to be solvent, in order to be taken seriously as a nation. Therefore, it needed to be able to pay its debts and to borrow money. You'll remember then in Europe during this time, industrialization is already well under way. For America to compete, there’s going to have to be an industrial infrastructure built. To do that, they’re going to need to borrow money. Hamilton used it as his justification, in order to advance that Article 1, Section 8 in the constitution. Let’s give a 1.8 here.

The idea of separation of powers that we just talked about and checks and balances, go a long way to this end. Montesquieu may have envisioned these sorts of things, but the concept of federalism advances the separation of powers as well. That’s shared power between the federal government and the states. You remember, the federal government has the power to print money. They have the power to regulate trade. They have the power to tax. They have the power to make treaties.

The states on the other hand have reserved powers by the tenth amendment. They have the power to regulate trade within their state, but they also have the power to create licenses. Now the constitution also gives power to be shared by the federal government and the states. That’s called concurrent power. States and the federal government are both going to be able to tax. They’re both going to be able to build roads. They’re both going to be able to have their own court; state and federal courts. They’re all going to be able to borrow money as well.

I asked you a question about people getting married in California, same sex marriage and whether that license need to be respected outside of the state of California. Also, whether people could drive in Florida with a California driver’s license. Or whether or not I had to pay out of state tuition for my daughter to attend college at the University of Illinois. All of these refer back in a way to article 4 of the constitution. There’s two main clauses of that.

The ones you’re going to want to know are the Full Faith and Credit clause. Full Faith and Credit, which bind each one of these states to respect the contracts and the licenses from each other. So on the surface of it, it would seem that Utah or Tennessee would have to follow California’s same sex marriage law. But it’s also possible that several other states including Utah and Tennessee, could pass laws that say that marriage is defined as a relationship between a man and a woman. When that happens and there’s a conflict between state regulations, then it’s probably going to be decided in courts. At this state, in 2008, the Supreme Court has not attached equal protection rights to same sex marriage. So right now, not going to have to respect that as a contract in another state, but it also comes from article 4.

Do I get to drive with my California driver’s license in the state of Florida? Well, sure I do. I can drive anywhere in America, but if I live in the state of Florida, I’m going to have to get rid of this license. I’m going to have to get a state of Florida driver’s license, also in article 4.

Then the final one, out of state tuition in Illinois? Absolutely, the University of Illinois if it’s not discriminatory and it’s reasonable, they get to charge out of state tuition. So I’m going to have to start saving some money for my daughter to attend college there.

The last part of Article 4 has to do with the Privileges and Immunities clause. Privileges and immunities just means that, if I’m driving in another state, I’m travelling in another state, that I have the right to protection from the police. I have the right to protection from the courts, that every citizen has that right. So all of these are from The 4th Amendment.

Now the constitution also says that we live with the concept of Limited power. Government gets certain powers to do things, there are certain powers that are restricted. So let’s go back to article one for just a second. Yes, it’s the power of the congress to be able to declare war for example. But it’s not the power of the congress, and the power cannot be taken away from the citizens, to get rid of a writ of Habeas Corpus, Article 1 section 9. So what does all that mean? Well, in Latin it means literally to produce the body. So it’s not okay if I’m put in jail to be kept in jail, without being brought forward and charged with a crime. We accept that as part of our basic foundation. There is one exception to that, that might be relevant today. That has to do with it can be suspended in time of National crisis.

I can think of three times in American history where this is applicable. First, in the civil war. In the run up to the civil war, President Lincoln was worried about agent Provocateur in the state of Maryland right across the Potomac River, from Washington DC. Remember Maryland stayed with the union and he went and had several people locked up, no charges brought, suspended the writ of Habeas Corpus. He was challenged in court and he lost, but he still didn’t release them. He said, “I cannot believe that the constitution contains the seeds of its own destruction.” Historians have given him long term credit for that.

You probably know that in World War II, after the bombing of Pearl Harbor, that American citizens of Japanese descent on the West Coast of the United States, were removed to internment camps. Well, one man, Fred Korematsu challenged that in court. “I’m an American citizen,” he said, “I deserve the protection of the constitution Article 1 Section 9.” The Supreme Court found for the National government in time of crisis.

You’re probably thinking ahead of me for the third one. People flew the planes into the buildings on 9/11 and things changed forever in America. President Bush says that, “I am a wartime president. We’re a nation at war.” He has chosen to lock up people that he considers to be terrorists in a place called Guantanamo Bay, Cuba. Most of them are foreign nationals, but some, a few are American citizens, again in a time of crisis suspending the writ of Habeas Corpus.

Let’s return to our essential question for a minute. Who has power, and where does it come from? Let’s hope that you have a little bit in terms of the background and the philosophy and the enlightenment which led to the constitution. Let’s hope that you also have some of the guts from these questions. So let’s finish up here.

In Article 5, the constitution may be amended. How can it be changed? You probably knew from article two that Arnold Schwarzenegger doesn’t get to run for president of the United States. You must be a natural born citizen, 35 years old, and how many years of here? 14. So he doesn’t get to do it. But Arnold is also on record to saying that he would like to have the constitution changed. So how’s he going to get it changed? He needs a new amendment. Amendment 28. Someone would have to introduce it. It would have to pass in the House of Representatives, with a two-thirds vote. It would have to pass in the Senate with a two-thirds vote. Then it would have to be sent to the states for ratification. Three-fourths of the states would have to ratify, not an easy thing to do.

There’s also one more way that the constitution can be amended. Do you know it? It was on an exam about four, five years ago. Do you know that one? It says that the states can call with a vote of two-thirds of the states for a convention to discuss the constitution. It’s never happened though, and don’t except that to happen anytime soon. So Arnold, that’s amendment five.

The Supremacy clause is found in article 6. It’s very simple. When in fact there is a dispute between the federal government and the states, the federal government reigns supreme. You may have arguments with your parents in your home, but you understand where the authority would lie. In the early 1800s, the state of Maryland tried to tax the federal bank, and the supreme court of the United States said No, article 6. Check the case of McCulloch vs. Maryland in the bonus materials please.

So that leaves us with one more question, and that’s the one about privacy. Could you find the word privacy in the constitution? If you could, you’re better than I. It doesn’t exist. It’s a trick question. Do people have a natural right to privacy? Well, a lot of legal scholars do. I think that there is this right to natural privacy. They find it in several places, but you won’t find that word privacy printed. So check out chapters 13 and chapters 14 for a discussion of Civil Liberties and what privacy means.

Before we do our final wrap, I’m going to ask you to consider going to check out the bonus materials from the second foundation unit, and try some free response questions from the College Board. Well, what do we know from this? We’ve done a little bit of background with regard to the Philosophy of Enlightenment and how it land to the constitution.

You remember Separation of Powers, the idea of Montesquieu, power needs power. We’re going to stand that right here it’s very fragile and we’ll see if we can make it stand.

Another pillar of the constitution, Federalism; the idea of shared powers between the states and the federal government and limiting powers to the state and the federal government.

Then finally, Checks and Balances. Another one of the major pillars of the constitution. Article 1 and article 2 were your prime examples of that. The president had the power as commander-in-chief to commit troops. Congress had the power to declare war. The president has the power to enter into treaties and to appoint judges. The US Senate has the power to ratify and confirm a number of checks and balances. So let’s go with this one as well.

With those three, we now have the foundation for the constitution of the United States.