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The first national government under the Constitution

 

Once the Constitution was ratified the new government was set up only after a great deal of frustrating delay and political maneuvering. It took the better part of a year, once New Hampshire became the critical ninth state to ratify the Constitution in June 1788, before the new government began to become a reality.

First of all, the Confederation Congress, still in existence and meeting in New York's City Hall, had to set dates for the election of representatives and for the state legislatures to choose presidential electors. Then it had to select a new national capital, make sure senators were elected by the state legislatures, and finally, see that a president and vice president were selected by the electors. These formidable tasks were set out by the Constitutional Convention in a resolution adopted and sent to the Confederation Congress together with the completed Constitution. They were made complicated by the Anti-Federalist campaign for a second constitutional convention and by the "wayward sisters," North Carolina and Rhode Island, which did not ratify the Constitution until well after the various branches of government began operating.

One of the earliest disputes centered on where the new national capital should be located. First, should the temporary capital, in New York, be moved, and if so, where to? And second, where should the permanent capital be? The debate raged between northern states that wanted to retain New York as the capital and southern states that wanted it moved south, preferably to at least Philadelphia. Eventually, a compromise was worked out. New York, the nation's capital since 1785, would continue as the temporary capital. A site to be determined later but located on the Potomac River between Maryland and Virginia would become the probable location of the permanent capital.

As for the elections to be held under the Constitution, the problem was complicated. It was up to the state legislatures to call for elections for the House, but there was no uniformity in how they went about it. Some did it by a general at large vote, others by district voting.

The states also chose presidential electors in their own individual ways – several by popular vote, some through their legislatures, some by a combination of both. And because of delays caused by Anti-Federalist opposition to the Constitution, New York never did pick electors for the first presidential election.

The choice of senators was as varied: by joint ballot of both houses in the legislatures of Virginia, Maryland, New Jersey, and Delaware; by ballot in each house in New Hampshire, Massachusetts, and New York; and by the vote of the one-house legislature in Pennsylvania. The methods used in Connecticut, South Carolina, and Georgia are not known – no records were kept.

George Washington was the unanimous choice of the electors as the first president, but he had been a far from aggressive candidate for the office. In fact, he served only because he saw it as his duty. But controversy did surround who would be the first vice president. Washington was a Virginian, so clearly a northerner was needed for balance. The choice narrowed to two men from Massachusetts – John Hancock and John Adams, both signers of the Declaration of Independence in 1776. At first it appeared that Adams would probably be named chief justice of the Supreme Court, leaving the vice presidency to Hancock. However, Hancock's vacillations in support of the new Constitution and his attitude favoring amendments to it began to turn supporters against him. Adams, who enjoyed a reputation for integrity and ability, became the favored choice. But it was far from smooth sailing. Alexander Hamilton and other Federalists tried to keep him from getting elected by too great a vote. For one thing, they wanted to solidify their influence with Washington and to block Adams because he envisioned that the vice president would be a sort of "prime minister" of the Senate. Their campaign was successful: Adams failed to get a majority of second-place votes and his feelings were deeply hurt. However, he did win a plurality and thus became the first vice president.



It took weeks for the new House of Representatives and the Senate to form quorums needed to open business, count the electoral votes, and get the new government under way. In the meantime, the old executive departments of the Confederation Congress continued in existence. The new Congress was scheduled to begin March 4, 1789, but each house continued to adjourn from day to day until the House finally convened on April 1 and the Senate on April 6. On April 6 the electoral votes were counted by both houses and the Senate elected John Langdon of New Hampshire president pro tempore – that is, for the time being – until John Adams could reach New York to head the Senate.

Washington was sworn into office on April 30, 1789. The oath was administered by Robert R. Livingston, chancellor of the state of New York.

The business of the new Congress next focused on creating a system of customs duties and establishing new departments of State, the Treasury, and War, each to be headed by a secretary. Then it enacted, and Washington signed into law, the Judiciary Act of 1789, one of the oldest and most important laws in American history. It created a Supreme Court with a chief justice and five associate justices, a system of district courts, and a system of circuit courts. The act also provided that in certain instances litigants could appeal from a state's highest court to the U.S. Supreme Court – a provision that gave the Court ultimate authority to enforce the Constitution against the states.

The first chief justice – chosen by Washington – was John Jay of New York, who had been secretary for Foreign Affairs under the Articles of Confederation. Washington also named all his colleagues. The justices met for the Court's first session on February 2, 1790.

 

LANGUAGE PRACTICE AND COMPREHENSION CHECK

USEFUL vocabulary

 

to set out, to rage, vacillation, integrity, to retain, to adjourn, to convene, to envision

 

TASK I. a) Match the following words to their definitions:

1) to set out; 2) to rage; 3) vacillation; 4) integrity; 5) to retain; 6) to adjourn; 7) to convene; 8) to envision;

a) to suspend the meeting of to a future time or to another place;

b) to come together ; assemble, meet usually for some public purpose;

c) to picture mentally , esp. some future event or events;

d) soundness of and adherence to moral principle and character; uprightness, honesty;

e) to proceed, continue, or prevail with great violence;

f) to continue to hold or have;

g) to define, to describe;

h) a state of being indecisive, irresolute, hesitant;

 

b) Use the above words in the following:

1) The Lucas fact situation, in which government regulation renders land entirely without economic use, will doubtless prove rare, as the Court itself … on more than one occasion.

2) The Court assumed that the State had a valid interest in preserving the flag as a national symbol, but whether that interest extended beyond protecting the physical … of the flag was left unclear.

3) On July 26, the convention … for 10 days, so a committee of five could put into some form the resolutions that had been approved in the previous month.

4) The Supreme Court held that a fundraiser who … 85 percent of gross receipts from donors, but falsely represented that ‘‘a significant amount of each dollar donated would be paid over to’’ a charitable organization, could be sued for fraud.

5) The debate … between northern states that wanted to retain New York as the capital and southern states that wanted it moved south, preferably to at least Philadelphia.

6) Although scheduled … on May 14, 1787, it was not until May 25 that enough delegates were present to proceed with the organization of the Convention.

7) The recent decisions voiding classifications have not clearly … which standard they have been using.

8) By his vigorous opinions in McCulloch v. Maryland and Gibbons v. Ogden, Marshall gave the principle a vitality which survived a century of … under the doctrine of dual federalism.

c) Translate the following, use the GLOSSARY:

1) By 1984, movement for a balanced budget amendment (BBA) at the state level found 32 states that had passed resolutions calling for a constitutional convention to debate a BBA, two shy of the required 34 states. Critics warned that, if convened, a constitutional convention could consider amendments other than a BBA, and interest in a convention dissipated. Three states – Alabama, Florida, and Louisiana – have rescinded their resolutions since 1990.

2) The vacillation of Chief Justice Marshall between the Bollman and Burr cases and the vacillation of the Court in the Cramer and Haupt cases leave the law of treason in a somewhat doubtful condition.

3) The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller (1973), but not to justify requiring one to forgo one election before changing parties.

4) The oath requirement was valid as “a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty” and as being “reasonably designed to protect the integrity and competency of the service.”

5) The First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the fact-finding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process.

6) Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

7) On April 6, the Court adjourned without deciding the McCardle case. Justices Robert Cooper Grier and Stephen Johnson Field stated that the Court should have reached a decision.

8) If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension or office of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

9) Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.

10) Where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the measure is determined by the power of Congress to regulate the subject matter.

 

TASK II. a) Combine the adjectives and the nouns; b) Use the word combinations to describe the first actions of the new government:

1) frustrating a) authority
2) formidable b) Constitution
3) complicated c) choice
4) aggressive d) problem
5) completed e) delay
6) unanimous f) affairs
7) ultimate g) tasks
8) foreign h) candidate

 

TASK III. Combine the verbs and the nouns; and use the word combinations to describe the elections to the national legislature or presidential elections in your country:

 


1. to cause

2. to form (complete the)

3. to hold

4. to keep

5. to favor

6. to enjoy

7. to choose, select, pick

8. to count

9. to enact

10. to enforce

11. to set

12. to adopt

a) records

b) a reputation

c) a resolution

d) the electoral votes

e) quorum

f) the Constitution

g) delays

h) dates for

i) electors

j) a law

k) elections

l) amendments


 

TASK IV. Add the following prepositions to complete the phrases below; use them to describe the formation of the government in your country:

a) into, b) against c) out d) under e) from f) in g) into h) out i) for

1) to set … (tasks)

2) to turn (supporters) …

3) to call … elections

4) to sign … law

5) to work … a compromise

6) to be sworn … office

7) still … existence

8) to be far …

9) to get … way

 

TASK V. Match the following phrases to their definitions:

1) unanimous vote

2) plurality vote

3) ballot

4) joint ballot

5) customs duties

6) district courts

7) circuit courts

8) pro tempore (lat.)

a) first-past-the-post voting.

b) a vote in which every voter concurs.

c) A vote by legislators of both houses sitting together as one body.

d) A system of choosing officers by a recorded vote, usu. by marking a paper.

e) A tax levied on an imported or exported commodity; esp., the federal tax levied on goods shipped into the United States.

f) A court usu. having jurisdiction over several counties, districts, or states, and holding sessions in all those areas.

g) A trial court having general jurisdiction within its judicial district.

h) For the time being; appointed to occupy a position temporarily.

 

TASK VI. Complete the following sentences:

1. The Confederation Congress was empowered by the Constitutional Convention to … .

2. Northern and southern states could not come to an agreement … .

3. North Carolina and Rhode Island ratified the Constitution … .

4. Only two candidates … .

5. Both John Hancock and John Adams … .

6. John Adams was expected to … .

7. John Hancock's supporters turned away from him because … .

 

TASK VII. Reading Comprehension check:

1. Explain why North Carolina and Rhode Island are called "wayward sisters".

2. Explain how " New Hampshire became the critical ninth state to ratify the Constitution"

3. Describe how Presidential electors were elected.

4. Describe the election of Representatives.

5. Describe the election of Senators.

6. What did John Hancock and John Adams have in common?

7. Name all governmental offices mentioned in the text.

8. Describe the tactics chosen by Federalists in electing John Adams the first vice president.

 

TASK VIII. a) Describe the functions and powers of the following American governmental officers and departments:

1. The Supreme Court

2. Chief Justice of the Supreme Court

3. Congress (the national legislature )

4. Senate (the upper house)

5. House of Representatives (the lower house)

6. a secretary of State,

7. the Treasury

8. a secretary of War

b) Name governmental bodies and officers exercising similar powers in your country:

 

TASK IX. Translate the following passages, use the GLOSSARY:

1. It took the better part of a year, once New Hampshire became the critical ninth state to ratify the Constitution in June 1788, before the new government began to become a reality.

2. The tasks before the Confederation Congress were made complicated by the Anti-Federalist campaign for a second constitutional convention and by the "wayward sisters," North Carolina and Rhode Island, which did not ratify the Constitution until well after the various branches of government began operating.

3. As for the elections to be held under the Constitution, the problem was complicated.

4. It was up to the state legislatures to call for elections for the House, but there was no uniformity in how they went about it. Some did it by a general at large vote, others by district voting.

5. George Washington was the unanimous choice of the electors as the first president, but he had been a far from aggressive candidate for the office.

6. But controversy did surround who would be the first vice president. Washington was a Virginian, so clearly a northerner was needed for balance.

7. But it was far from smooth sailing.

8. Alexander Hamilton and other Federalists tried to keep Adams from getting elected by too great a vote.

9. For one thing, they wanted to solidify their influence with Washington and to block Adams because he envisioned that the vice president would be a sort of "prime minister" of the Senate.

10. Adams failed to get a majority of second-place votes and his feelings were deeply hurt. However, he did win a plurality and thus became the first vice president.

 

The following issues will help you answer the exam topic THE HISTORY OF THE AMERICAN CONSTITUTION and write your essay:

1. British administration of colonies.

2. Colonial constitutions and governments.

3. Deliberations at the Constitutional Convention.

4. Ratification process.

5. Development of the Constitution.

 

 

UNIT II

AMERICAN CONSTITUTIONALISM: ORIGINS AND PRINCIPLES

 

TEXT 1

THE ORIGINS OF AMERICAN CONSTITUTIONALISM

What is American about the Constitution? Just as Americans have no monopoly on constitutional government today, the Founders cannot take credit for everything in their own constitution. Britain taught America the core tradition of constitutionalism. The ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as distant progenitors of the modern construction of the term. A host of medieval and Renaissance thinkers contributed to the constitutional tradition upon which Americans built, as did many writings during the seventeenth and eighteenth centuries in England, Scotland, and France. Still, the American synthesis was a unique blend of these intellectual influences and their own inventions.

First of all, there is the matter of form. Britain had a constitution, but the Americans put everything of constitutional status in a single written document. It is difficult to overestimate the significance of this practice. The Constitution is thus far more accessible to the average citizen as opposed to an educated elite. Although over time precise meanings will be buried in Supreme Court cases, the basic principles of the political system are readily available to the populace. This aspect of its form therefore, reflects a strong commitment to broad citizen participation then and in the future. In 1787, Americans assumed that a constitution should take this form, even though they were overwhelmingly of British descent.

Other aspects of the Constitution's form are worth noting. Separate sections define the three branches of government, and the legislative branch is discussed first, as it always is in American constitutions. There is a preamble, but it does not have constitutional status. There is a bill of rights separate from the main body of the constitution but also considered part of it. Americans had a habit of making a bill of rights part of their fundamental law, yet in various ways it was separate from the description of institutions. These and other aspects of form derive from American practice rather than from foreign theories.

A second category has to do with the institutions outlined in the national Constitution. Bicameralism was hardly an American innovation, but the American version was neither derived from nor justified by the British precedent. The explicit separation into three branches of government with coordinate powers is not British in origin. The states are mentioned throughout. In order to determine who is eligible to elect congressmen, senators, or the president, one must consult the state documents. To this day, the role and functions of state governments in America are a matter of some puzzlement to many Europeans. Americans did not invent federalism, but they adopted it with an alacrity missing in nonmigrating British. The use of different constituencies for electing various public officials departs from the British model, as does the use of different terms of office. The elaborate system of checks, the explicit enumeration of governmental powers, and the creation of an independent judiciary are some of the other elements of institutional design not found in the British model.

A third category involves theoretical principles. Although never explicitly mentioned in the United States Constitution, they underlie and tie together the entire document. These are the principles of a deliberative process, federalism, republicanism, the extended republic, consent, liberty, and a mixed regime. The British were no strangers to liberty, consent, deliberative processes, or mixed regimes. The Americans, however, pursued these principles with a vengeance that transformed them.

A fourth category has to do with assumptions at variance with those underlying the British political system as it existed in the late eighteenth century. The most dramatic involved the way Americans viewed themselves as a people. They firmly believed that on their own authority they could form themselves into a community, create or replace a government to order their community, select and replace those who hold government office, determine which values bind them as a community and thus which values should guide those in government when making decisions for the community, and replace political institutions at variance with these values.

The Americans' rather complete notion of popular sovereignty was also radical in that their concept of “the people” was a broad one. England was the envy of Europe for its liberal institutions, but the least liberal American state in the 1780s, Georgia, enfranchised four or five times the percentage of the population as held the franchise in England. England would have had to enfranchise ten times as many people as it did in the 1780s to match the average in its former colonies. There was nothing else in Europe to compare with the American practice of popular sovereignty. Nor was this a recent phenomenon in America. For all the resonance with Locke's ideas, many of the principles and assumptions of American constitutionalism were operative before Locke published his Second Treatise on Civil Government. In temporal terms, it makes more sense to call Locke an American than it does to call America Lockean.

Sorting out the influences on the origin of the form, institutions, and underlying principles and assumptions of American constitutionalism, we could take the anthropologists' approach. They have taught us that ritual precedes myth that practices develop and are then justified. Thus we should examine political practices and events out of which constitutional theorizing arises. But in a developed culture, practice will sometimes flow from theorizing based upon earlier practices, and the starting point is difficult to determine.

 

NOTES TO THE TEXT

anthropologists' approach - a sub-discipline of the science which specializes in "the cross-cultural study of social ordering"

John Locke (1632-1704) – English philosopher, who discussed the concept of empiricism in his Essay Concerning Human Understanding (1690). He influenced political thought, especially in France and America, with his Two Treatises on Government(1690), in which he sanctioned the right to revolt.

 

LANGUAGE PRACTICE AND COMPREHENSION CHECK

USEFUL VOCABULARY

descent, constituency, vengeance, alacrity, progenitor, to underlie, commitment, to enfranchise, to outline, host, to assume, construction

 

TASK I. a) Match the words to their definitions:

1) descent, 2) constituency, 3) vengeance, 4) alacrity, 5) progenitor, 6) to underlie, 7) commitment, 8) to enfranchise, 9) to outline,10) host, 11) to assume,12) construction

a)ancestor, predecessor, source, origin;

b)clarification, comment, commentary, interpretation, meaning, sense, understanding;

c)a great number; multitude;

d)the state of being bound emotionally or intellectually to a course of action or to another person or persons;

e)to be inclined to think, to be of the opinion, to suppose;

f)birth, ancestry, blood, origin;

g)to give the main features or general idea of; to list or describe only the most important parts of;

h)eagerness, enthusiasm, anxiety, readiness;

i)electorate, electors, voters, voting district;

j)to make up, to be, to form, to serve as the foundation, the basis;

k)infliction of punishment in return for a wrong committed; retribution;

l)to admit to the privileges of a citizen and especially to the right of suffrage;

 

b) Use the words descent, commitment, vengeance, construction, constituency, descent, construction, constituency, commitment, progenitor, alacrity, assumed, underlie, enfranchised, assume, a host of, outlined, underlie, a host of, outlined to complete and translate the following sentences; use the GLOSSARY:

1) There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English … .

2) Cooley is important because it advances the argument that the commerce clause is not an “all or none” principle; that is, there is some role for state regulation of commerce if the subject is local and if Congress has not … jurisdiction over the subject (in this instance, pilots).

3) The Court’s decision to use less rigorous scrutiny reflects the importance of the interests that … contribution limits – interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.”

4) On August 26, 1920, 26 million women became …. Ten states – Delaware and nine in the South – refused to ratify the amendment.

5) The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer, – all orders of men, look forward with eager expectation and growing … to this pleasing reward of their toils.

6) The first naturalization act enacted by the first Congress restricted naturalization to “free white persons,” which was expanded in 1870 so that persons of “African nativity and …” were entitled to be naturalized.

7) Unlike countries such as the Philippines where senators are elected at-large, U.S. presidents are elected separately if indirectly by a far broader national … than any member of the national legislature.

8) The first theory of liability was in terms of a duty to buy off the … of him to whom an injury had been done whether by oneself or by something in one's power.

9) On February 19, 1942, President Roosevelt issued an executive order, pursuant to which more than 112,000 residents of the Western States, all of Japanese … and more than two out of every three of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later into “relocation centers” in several States.

10) One would … that more than 50 years since the landmark Brown case was decided by the Supreme Court in 1954, the desegregation rulings and mandates would have proven successful in overcoming segregation in schools. However, despite the progress and forced remedies for countering racial segregation in U.S. schools, a recent study by Harvard’s Civil Rights Project has found that schools were in fact more segregated in 2000 than they were in 1970 when busing and other methods were used for desegregating schools.

11) Whatever the merits or flaws of all the arguments, the U.S. constitutional structure was built upon a … to individual choice and respect for the integrity and inviolability of the individual conscience.

12) The new discrimination can be best seen in PLESSY V. FERGUSON,(1896), where the Supreme Court upheld laws that mandated separate provisions for blacks and whites. Here, the Court stated that separate but equal facilities for members of different races were permitted. As result of Plessy, African Americans were segregated into separate school districts and otherwise were denied equal treatment when it came to housing, employment, and … other actions.

13) Federalist 1, the first to appear, as they were numbered chronologically, written by Hamilton, introduced and … the goals and subjects of the following articles.

14) He also purchased shares in other concerns conducted on the same principle; pocketed dividends made in countries which he had never visited by men whom he had never seen; bought a seat in Parliament from a poor and corrupt …, and helped to preserve the laws by which he had thriven.

15) Until recently, it was the view of most judges and scholars that this type of executive agreement did not become the ‘‘law of the land’’ pursuant to the supremacy clause because the treaty format was not adhered to. A different view seemed to …the Supreme Court decision in B. Altman & Co. v. United States, in which it was concluded that a jurisdictional statute reference to ‘‘treaty’’ encompassed an executive agreement.

16) Battles over the power of states versus the national government, prayer in public school, abortion, gay rights, censorship, peace, war, the death penalty, and … other issues inevitably reach the Constitution.

17) Harlan, a former slave owner, dissented from this narrow … of the Fourteenth Amendment by declaring that the majority’s narrow concept of state action reduced the amendment to baubles thrown to those who deserved fair treatment.

18) President George Bush was criticized for authorizing electronic surveillance of telephone and internet messages in apparent violation of the Foreign Intelligence Surveillance Act of 1978, which … procedures to obtain warrants from a special court in cases like this.

19) The Waite Court’s narrow … of the Fourteenth Amendment in the Civil Rights Cases can be contrasted with its extension of constitutional protection to corporations.

20) In Cooper v. Aaron, the Supreme Court ruled that state officials must obey court orders resting on the Supreme Court’s authority to interpret the Constitution. This case is important because the Court rejected a serious challenge to its authority and reaffirmed its … to integration.

 

TASK II. a) Find the following word combinations in the text and translate the sentences with them: a) entire document; b) complete notion; c) elaborate system of checks; d) precise meanings; e) explicit separation into three branches of government; explicit enumeration of powers

b) Match the adjectives to their definitions:

1) exactly or sharply defined or stated; minutely exact; strictly conforming to a pattern; standard, or convention; distinguished from every other;

2) planned or carried out with great care; marked by complexity, fullness of detail;

3) fully revealed or expressed without vagueness, implication, or ambiguity: leaving no question as to meaning or intent; open in the depiction of nudity or sexuality; fully developed or formulated; unambiguous in expression;

4) having no element or part left out; complete in degree: total; consisting of one piece;

5) having all necessary parts, elements, or steps; brought to an end : concluded; highly proficient; fully carried out: thorough; total, absolute;

c) Match the adjectives to their synonyms:

1) complex, complicated, detailed, fancy, intricate, involved, sophisticated;

2) clear cut, definite, definitive, express, specific, unambiguous, unequivocal, univocal;

3) compleat, comprehensive, entire, full, grand, intact,integral, perfect, plenary, total, whole;

4) all, concentrated, whole, exclusive, focused (also focussed), undivided;

5) accurate, close, delicate, exact, fine, hairline,mathematical, pinpoint, refined, rigorous, spot-on;

d) Translate the following sentences, use the GLOSSARY:

1) To appreciate Lincoln’s philosophy of the law requires considering his role in preserving the Union and the idea of democratic government during an autocratic age; how he emancipated not only the slaves but the entire middle class and the nation as a whole; and how “the Great Reconciler” implemented a non-Marxian “people’s jurisprudence” through his “with malice toward none” philosophy.

2) The Great Emancipator took steps to free the entire emerging middle class by signing into law three of the most important pieces of legislation in American history. The first was the Homestead Act of 1862, which James Buchanan had vetoed previously. The second, which Buchanan also had vetoed as unconstitutional, was the Land Grant College Act of 1862, which transformed higher education in the nation. That same year, Lincoln signed the Pacific Railroad Act, which led to the building of the transcontinental railroad.

3) The line-item veto is a proposal that would allow the president to veto certain items from a budget bill, rather than requiring the president to veto the entire bill. This type of veto power has been requested by several presidents, and at least all since Ronald Reagan was in office.

4) Often overlooked in this compelling debate about slavery was the complete omission of Native Americans in this calculation. American Indians as a whole were not taxed at the time, and consequently, they had neither a representative link to nor a particular stake in the new republic.

5) Interpreting the First Amendment and generally following the path of increasing protection for “commercial speech” as a whole, the Supreme Court has protected much advertising by attorneys as essential freedom of speech. But that protection is not absolute, and in recent years the Supreme Court has refused to give complete protection to lawyers seeking clients through solicitation and targeted advertising.

6) The person convicted in Gregg argued that unconstitutional arbitrariness was still present because the prosecutor, as contrasted with the jury, still had complete discretion whether to try a case as a capital case.

7) The framers’ goal was to protect liberty, preserve popular government, and limit the threats of what we would now call the tyranny of the majority. It would secure these goals by setting up an elaborate machine that would use checks and balances, separation of powers, bicameralism, federalism, and self-interest to check political power.

8) Modern writers, like English philosophers John Locke (1632–1704) and William Blackstone (1723–80), offered elaborate theories based on natural law, and both Locke and Blackstone influenced many American thinkers on matters relating to natural law, natural rights, individualism, the right of revolution, and the need for limited government.

9) Fair market value is the sum that a willing buyer would pay a willing seller in the open market. No precise formula exists, however, by which the elements of just compensation can be calculated, and there is much debate over what should be considered in the valuation of the property.

10) Some authors see the insistence on precise equality of district population as curious in light of the fact that distribution of 435 seats among the 50 states inevitably entails more than 70 percent deviations among districts of different states.

11) In Bajakajian, the Court declined to provide a precise test for disproportionality, but did indicate that for a fine or forfeiture to be unconstitutional it must be “grossly” disproportional to the gravity of the offense.

12) While the commerce clause is a positive and explicit grant of authority to Congress, it is simultaneously a restriction on the authority of the states.

13) In determining the permissible scope of congressional power under the clause, the Court has dealt primarily with interstate commerce, but its explicit language also gives Congress prerogatives with regard to foreign commerce and commerce concerning Native American tribes.

14) The Communications Decency Act (1996) designed to protect minors from being exposed to obscene and indecent material on the Internet made it a crime to knowingly distribute sexually explicit content online that was patently offensive or indecent and not shielded from children who were under 18 years of age.

 

TASK III. Find that paragraphs in the text which explain each of the following:

1) The Founders cannot take credit for everything in their own constitution.

2) It is difficult to overestimate the significance of this practice.

3) These and other aspects of form derive from American practice rather than from foreign theories.

4) To this day, the role and functions of state governments in America are a matter of some puzzlement to many Europeans.

5) The Americans, however, pursued these principles with a vengeance that transformed them.

6) American assumptions of constitutionalism were at variance with those underlying the British political system as it existed in the late eighteenth century.

7) There was nothing else in Europe to compare with the American practice of popular sovereignty.

8) In a developed culture, practice will sometimes flow from theorizing based upon earlier practices, and the starting point is difficult to determine.

 

TASK IV. Translate the following sentences, use the GLOSSARY:

1) Term limits are constitutional or statutory restrictions on how long one single individual may remain in any one office.

2) In the United States, there are both constitutional and statutory provisions that serve as a protection against torture.

3) In the United States, there are also significant cases that illustrate the constitutional protections against torture in domestic interrogations—particularly related to the Fifth Amendment right against self-incrimination and the due process clause of the Fourteenth Amendment.

4) Attempts at making the “two term” tradition permanent through a constitutional amendment had regularly cropped up in congressional proposals and on occasional party platforms.

5) Because the U.S. Constitution permitted states to practice slavery, only a constitutional amendment could end the practice.

6) Johnson’s defense was two-pronged, as his lawyers argued that (1) he had not personally burned the flag, and (2) even if he did, the statute he was charged under was an unconstitutional violation of his free-speech rights.

7) Congress responded to the decision in Texas v. Johnson by passing the Flag Protection Act (1990), which supporters characterized as a way to reverse the Court’s ruling without resorting to a constitutional amendment.

8) Supporters of a constitutional argument typically assert that Texas v. Johnson was decided wrongly; that flag desecration involves conduct, not speech; and that the American flag is unique and thus merits special protection.

9) The Court concluded that, in the Des Moines controversy, wearing the black armbands was a form of symbolic speech and that students were “persons” whose constitutional rights were to be acknowledged by school authorities.

10) Executive agreements entered into pursuant to congressional authorization and probably through treaty obligations present little doctrinal problem; those arrangements by which the President purports to bind the Nation solely on the basis of his constitutional powers, however, do raise serious questions.

11) The world of the 21st century is vastly different from the one the constitutional framers experienced.

12) The Supreme Court ruled that state laws seeking to impose term limits upon members of Congress were unconstitutional because they violated the qualifications set for the House of Representatives and the Senate in Article I of the U.S. Constitution.

 

 

TASK V. a) Find negative sentences in the text and translate them;

b) Translate the following, use the GLOSSARY:

1. There is a preamble, but it does not have constitutional status.

2. Just as Americans have no monopoly on constitutional government today, the Founders cannot take credit for everything in their own constitution.

3. These and other aspects of form derive from American practice rather than from foreign theories.

4. Bicameralism was hardly an American innovation, but the American version was neither derived from nor justified by the British precedent.

5. The explicit separation into three branches of government with coordinate powers is not British in origin.

6. Americans did not invent federalism, but they adopted it with an alacrity missing in nonmigrating British.

7. The elaborate system of checks, the explicit enumeration of governmental powers, and the creation of an independent judiciary are some of the other elements of institutional design not found in the British model.

8. Although never explicitly mentioned in the United States Constitution, they underlie and tie together the entire document.

9. The British were no strangers to liberty, consent, deliberative processes, or mixed regimes.

10. There was nothing else in Europe to compare with the American practice of popular sovereignty. Nor was this a recent phenomenon in America.

11. "No state, without its consent, shall be deprived of its equal suffrage (equal voting power, or equal representation) in the Senate."

12. The U.S. Constitution cannot be amended to provide for unequal representation of the states in the U.S. Senate, unless such a proposed amendment is ratified by all the member-states of the federal union. .

13. Federal taxes must not be levied on or in some states, but not on or in other states. And federal tax rates must not be higher in some states than in other states.

14. In admitting new states into the American federal union, Congress may not, without the consent of the legislatures of the states concerned, (1) form or erect a new state within the jurisdiction, or borders, of another state or (2) form a new state by the junction, or merger, of two or more existing states or parts of states.

15. By the terms of the Twenty-fourth Amendment, the states are prohibited from denying or abridging the right of citizens to vote in federal elections by reason of failure to pay any poll tax or other tax.

16. All powers neither delegated to the central government nor denied to the states remain within the sphere of state authority.

17. Nothing in the Tenth Amendment denies the national government the right to exercise, to the fullest extent, the powers delegated to it by the Constitution.

18. Therefore, the central government under the U.S. Constitution, a government with a severely restricted and confined sphere of authority, is nothing more than an agent of the states designed to facilitate mutual cooperation and support in joint endeavors to pursue shared interests and achieve common objectives.

19. The U.S. Constitution must be interpreted as narrowly defining the powers of Congress and strictly limiting them to the enumerated powers – the powers expressly delegated to Congress by the Constitution. There are no implied powers of Congress. There are only express powers.

20. Federalism requires a written constitution and the reason is quite simple: there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers.

 

TASK VI. a) Use the text to complete the sentences which would start as follows:

1) Americans have no monopoly on …

2) Britain taught America …

3) Americans built upon the constitutional tradition …

4) The American synthesis …

5) Britain had a constitution …

6) The Americans put everything of constitutional status …

7) Americans assumed that …

8) They were overwhelmingly of British descent …

9) In American constitutions …

10) Americans had a habit of …

11) The American practice of …

12) An American innovation …

13) The American version …

14) The British precedent …

15) British in origin …

16) Americans did not invent …

17) The British model …

18) The British were no strangers to …

19) The Americans pursued the principles …

20) The British political system …

21) Americans viewed themselves as …

22) The Americans' notion of …

23) England was the envy of …

24) The least liberal American state …

25) The franchise in England …

26) The American practice of …

27) American constitutionalism …

 

b) Add the following words: French; Great Britain; Americans; Britain; British; English; France; Parliament’s; England’s; British

The delegates to the Constitutional Convention often referred to the 1) … philosopher John Locke’s Two Treatises on Government, written in 1690 just after 2) … Glorious Revolution of 1688 had strengthened 3) … hand against the king. Locke argued that all people were born with certain “natural rights” to life, liberty, and property, which governments existed to protect. Locke believed that a government should be seen as the agent of the people, not their ruler, and therefore should operate under some restraints.

An equally influential book was The Spirit of the Laws, written in 1748 by the 4) … philosopher the Baron de Montesquieu. Writing while 5) … was still under the rule of an all-powerful monarchy, Montesquieu admired the 6) … system that separated the powers of the monarch, the parliament, and the judiciary. In 7) …, the king served as the head of state, performing ceremonial functions and commanding the military, while the prime minister functioned as the head of government, providing political and legislative leadership. Because the 8) … had rebelled against 9) …, the delegates modified Montesquieu’s political theories into something that differed from the 10) … parliamentary system. They created entirely separate executive, legislative, and judicial branches of government, making sure that no single branch would hold exclusive power, but each would check and balance the others. With power so divided, the independent branches must reach some common agreement for the federal government to act harmoniously.

c) Express your agreement or disagreement with Locke’s ideas and Montesquieu’s political theories.

 

TASK VII. a) Match the terms republicanism, popular sovereignty, federalism, bicameralism to their definitions:

· The organization of a legislative body based on two chambers. In some democracies, the lower house has the greatest legislative power, and the upper or second house of the legislature has a more restricted role. In the United States, both the Senate and the House of Representatives have broadly equivalent power, and legislative differences are resolved via joint committees. In federal systems, the upper house usually represents the units of the federation, e.g., states or provinces, which may be given an equal number of seats regardless of their population size.

· The exclusive right to have control over an area of governance held by the citizenry exercised directly, as in a popular assembly, or, more commonly, indirectly through the election of representatives to government.

· The form of government based upon the citizenry electing representatives to carry out the functions of government.

· The broad term, not mentioned in the Constitution, describes the constitutional relationship between the states and the national government, in which power is distributed between the central authority and the states.

 

b) Add the above terms to complete and translate the following sentences, use the GLOSSARY:

1) Events since 1787, of course, have altered both the separation of powers and the … bases of …, in particular the adoption of the Seventeenth Amendment resulting in the popular election of Senators, so that the differences between the two Chambers are today less pronounced.

2) The question whether Congress’ power to regulate commerce “among the several States” embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution’s interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of American … . The issue was as early as 1841 brought forward by Henry Clay. Until roughly the New Deal, the Supreme Court applied a doctrine of “dual …,” under which the Federal Government and the States were separate sovereigns, each preeminent in its own fields but lacking authority in the other’s.

3) The concept of … as a form of government is guaranteed to all the states in Article IV, Section 4 of the Constitution. However, what this type of government requires is unclear because the federal courts have refused to hear suits on this matter.

4) In the United States, … denotes limited government in the form of representative democracy when citizens elect representatives who govern on their behalf, but within the constraints of the rule of law.

5) Originally, … was simply opposed to hereditary monarchies and tyrannies. Increasingly it came to mean a commitment to popular self-government.

6) The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This “imperative of legislative control grew directly out of the Framers’ revolutionary idea of … .”

7) "Judicial review was a substitute for popular action, a device to maintain … without the need for civil unrest." Judges' decisions about the Constitution, like those of other officials, ''were still subject to oversight and ultimate resolution by the people themselves."

8) Another theme resonating among the justices was the rejection of state sovereignty and an emphasis on …, the idea that the United States was a union of people. Justice James Wilson asserted that sovereignty rested with the people of the United States, not with the states, which meant that states were subordinate to the people and therefore could be sued by them.

 

TASK VIII. Discuss the ideas and theories that influenced American thinking on government:

During the Enlightenment in the 1600s and 1700s, many political philosophers met and discussed their ideas on govern­ment together. The Enlightenment was a period in European his­tory when many educated people stressed the importance of learning and reasoning. Education was considered the key to understanding and solving society's problems. Many Enlighten­ment thinkers lived in Paris. These thinkers were known as “philosophes”, the French word for one who searches for wisdom and knowledge. Among the most influential philosophers were John Locke, Jean Jacques Rousseau, and Baron de Montesquieu.

 

"Contract theory" of government developed by Locke (1632-1704)

John Locke, an English political philosopher, helped to further develop democratic ideas. In 1690, Locke published the First and Second Treatises on Government. These two books explained Locke's con­tract theory of government.

According to Locke, the Magna Carta and Bill of Rights pro­tected the inalienable, or natural, rights of all British citizens. Locke wrote that all people had the inalienable "right to life, lib­erty, and property" Locke believed that people created govern­ment and chose to be governed in order to live in an orderly society. In other words, government arose from an agreement, or contract, between the ruler and the ruled. Thus, a ruler only had power as long as he or she had the consent of the governed. And, as a result, a ruler could not justly deny peoples' basic rights to life, liberty, and property. Many Americans had read Locke’s book, and they agreed with what it said about government. Those who had actually read Locke’s book knew his ideas from newspapers, political pamphlets, church sermons, and discussions.

Most people in the American colonies believed that everyone had a right to life, liberty, and property. These rights were called natural rights. (Sometimes these are now called basic rights or fundamental rights. The idea of natural rights means that all persons have these rights just because they are human beings. Everyone is born with these rights and they should not be taken away without a person’s agreement. Many of the Founders of our government believed people receive these rights from God. Others believed that people have them because it is natural for people to have them.

Protecting natural rights

Although people agreed on certain natural rights, they worried about how those rights could be protected. Locke and others thought about what life would be like in a situation where there was no government and no laws. They called this situation a state of nature. They were afraid that in a state of nature their rights would be taken away.

1. The stronger and smarter people might try to take away other people's lives, liberty, or property. 2. Weaker people might band together and take away the rights of the stronger and smarter people. 3. People would be unprotected and insecure.

The social compact

John Locke and other philosophers developed a solution to the problems that exist in a place without government. In a state of nature people might feel free to do anything they want to do. However, their rights would not be protected and they would feel insecure. Locke argued that people should agree with one another to give up some of their freedom in exchange for protection and security. They should consent to follow some laws in exchange for the protection that these laws would give them. This agreement is called a social compact or social contract. A social compact is an agreement people make among themselves to create a government to rule them and protect their natural rights. In this agreement the people consent to obey the laws created by that government.

 

The contract theory expanded by Rousseau (1712 - 1778)

In his book, The Social Contract, Jean Jacques Rousseau wrote about an ideal society. In this society, people would form a community and make a contract with each other, not with a ruler. People would give up some of their freedom in favor of the needs of the majority. The community would vote on all decisions, and everyone would accept the community decision. When Rousseau wrote The Social Contract, there was not a society in the world with such a system. His vision, however, was shared by American colonists and others.

 

Limited Government suggested by Montesquieu 1689 – 1755

In his book on gov­ernment, The Spirit of Laws, Baron de Montesquieu developed practical suggestions for creating democratic governments. He stated that the best way to ensure that the government protects the natural rights of citizens is to limit its powers. And the best way to limit government's powers is to divide government's basic powers among a number of authorities.

By dividing powers between different branches or parts of the government, no one authority would have too much power. Mon­tesquieu referred to this as a system of checks and balances.

These philosophers' ideas might sound familiar. In Declaration of Independence, Thomas Jefferson wrote that "all men are created equal; that they are endowed with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Jefferson had read Locke's Treatises very closely.

The people who created the United States Constitution found great political wisdom in the past. The system of government in place in the United States combines Ancient Greek and Roman practices with ideas developed more than 1,000 years later in Europe. Most Americans living at the time the Constitution was written were familiar with Greek democracy, the Roman repub­lic, the British parliamentary system, and the writings of Locke, Rousseau, Montesquieu and others. The Framers of the U.S. Con­stitution were deeply influenced by the many ideas on govern­ment developed during the previous 2,000 years.

 

Sir William Blackstone (1723-1780)

William Blackstone was a British jurist and legal scholar, whose work Commentaries on the Laws of England was used for more than a century as the foundation of all legal education in Great Britain and the United States.

Blackstone was born in London on July 10, 1723. He received his education at the University of Oxford. From 1765 to 1769 Blackstone published the four volumes of his Commentaries, which were immediately successful in both England and the American colonies. The Commentaries provided an introduction to English law in a clear style that was easily understandable to the public. Although the authority of his sources, the accuracy of his statements, and the relevancy of his point of view have been subjected to severe criticism, the Commentaries are still significant as a comprehensive history of English law.

 

Thomas Hobbes (1588 - 1679)

Hobbes lived in England. His views were influenced by the fact that he lived during the English Civil War, a time of violence and famine. Hobbes' view of human nature was that man was born evil and needed a strong hand to guide him. Thus, Hobbes believed in an absolute monarch. Hobbes said that in the state of nature there is no formal law, no order, no culture, and no hope. In other words, man lived in a state of total chaos where no man has any individual rights and all men are at war. Life is a constant battle for power, ending in death. Man needed some type of fear of authority in order to be able to be persuaded to follow the law. Hobbes discussed his beliefs on man and government in the book Leviathan. Hobbes believed that man gave up ALL his rights to the government, and that in return, the government provided security.

 

Machiavelli (1469-1527)

In 1513, Machiavelli wrote a book about political power, named The Prince. Machiavelli believed that most people were evil and corrupt. A centralized government with a strong leader would be the best type of government. The leader, according to Machiavelli, should do anything necessary to achieve what was best for his country. "The ends justify the means." The Prince became a must-read for many politicians in years to come, as it was viewed as a common sense, pragmatic approach to politics.

 

 

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Date: 2015-02-16; view: 762


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