9/2/14 ● Fundamental Themes of the Constitution ○ living documents ○ checking power with power p.31 ■ inefficient and still function ○ fear of democratic excesses ■ framers didn’t trust democracy; they were going for a republic ● The Living Constitution ○ brief 8,000 words (short) ○ reinterpreted frequently ○ relies primarily on general statements rather than detailed descriptions > article 1 is an exception ● Ambiguous and contradictory ○ inconsistent in what it calls us to do ○ necessary and proper clause, article 1, section 8, clause 3 ■ congress has power unless a part of the constitution says so ○ Amendment 10 and 1 are contradictory. Shall make no law respecting an establishment of religion > no state can have a state religion ■ amendment 1: religion, speech, assembly and politics ■ amendment 10: reserved powers of state ○ interpret each part according to each circumstance ● Fundamental Principles of Liberalism ○ Natural, individual Human Rights ○ Consent of the Governed > contract ○ Limited Government ● The first purpose of a constitution is to limit the power of government by guaranteeing citizen rights and insuring government by consent ● Limit government so it supports and doesn’t contradict human rights ● Liberalism: John Locke ● Madison and Mischiefs of Faction ○ if men were angels, no 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 (Federalist 51) ○ divide power > makes it hard to control government ● Separation of Powers ○ Baron de Montesquieu > Charles Louis de Secondat ○ articles 1, 2, and 3 ■ legislative ■ executive ■ judiciary ○ checks and balances; ambition countering ambition ● only congress can declare war ● Federalism: ○ is a form of government in which is a constitution distributes powers between a central government and subdivisional governments > equal governments neither is superior ○ state is not created by central government, it can do what it says but it is separated ● Delegated national powers article 1 ● Congress is the most democratic, article 1 is very specific because of this > limits the power ● States > gets powers but doesn’t say which powers ○ electoral college ● They weren’t afraid of states which is why they weren’t specific; Congress they were specific because they were scared of them ● Checking democratic excesses ○ electoral college ○ election of Senators by state legislatures ○ Shea’s Rebellion ● Judicial Review ○ Marbury v. Madison (1803) p.38 ○ Civil Rights Act of 1964 ■ U.S. v Heart of Atlanta Motel ■ Katzenbach v McClung ● interstate commerce clause > article 1, section 8, clause 1 ● contradiction in Supreme Courts position on public facilities ○ Plessy v Ferguson (1896) fail ○ Brown v Board of Education (1954) pass ■ okay as long as it can be separate but must be equal ■ Brown v Board was found unequal ●