Research Paper: Federalist What Is a Faction?

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[. . .] Justify your proposal.

The framers intended the amendment process to be difficult, to avoid the problem of the tyranny of the majority. Unless the state legislatures call a constitutional convention, the only way an amendment can be passed is with a supermajority of two-thirds of Senators and Representatives which is then sent to the states for ratification. Three quarters of the state legislatures must then approve the amendment, usually within a set time frame, although the 21st Amendment (repeal of Prohibition) specified that state conventions had to vote on it. No constitutional convention called by the states has ever occurred, although this would be the method that best expressed popular sovereignty.

One major problem the U.S. has today that could only be changed by a 28th Amendment to the Constitution would be the negative effect of big money donors on the political process at every level of government. No contributions or donations would be allowed for politicians or political parties. Of all the possible reforms that would be necessary and beneficial the most important would be to remove the power of big money from the political process. Almost all of this money came from large corporations and wealthy individuals, who can now give unlimited amounts of money because of Citizens United and other recent Supreme Court decisions. With the appointment of John Roberts and Samuel Alito to the Supreme Court, earlier decisions that placed limits on corporate financing of elections were overturned, so now a constitutional amendment is the only remedy for this major problem.

LAST PART (1 Pages) 1) Rewrite Article I, Sections 2 and 3 in your own words. The commentary in the margins of the text may be useful to you. 2) Who are the presiding officers in both houses of Congress?

The members of the House of Representatives are elected every two years directly by the people, with franchise qualifications set by the states. Representatives must be at least 25 years old, reside in the states from where they will be elected and have been U.S. citizens for at least seven years. The first census to determine the apportionment of Representatives will be held within three years after the Constitution is ratified, and then every ten years after that. For purposes of representation, slaves will be counted as three-fifths (60% of a white person), while Native Americans who are not citizens of their states will not be counted at all for this purpose (This clause is obsolete now.) Each state will have at least one Representative, not to exceed one for every 30,000 people. In the first Congress, New Hampshire will choose three Representatives, Massachusetts eight, Rhode-Island one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When a Representative office falls vacant, the governors of the states will choose replacements until new elections are held. The Speaker of the House is the chief presiding officer of that branch and will be chosen by the members. In addition, only the House will have the power to impeach federal judges, the president, vice president and officers of the executive branch.

Each state will have two Senators appointed by the state legislatures for terms of six years, and each Senator will have one vote. In the first Senate, one-third of the seats must be vacated after two years, the second third after four years, and the remaining third after six years. If vacancies occur while the state legislatures are not in session, the governors of the states will make temporary appointments until the next meeting of the legislatures. (Note that Senators are now directly elected by the voters.) All Senators must be at least 30 years old, have been American citizens for at least nine years, and reside in the states they represent. The Vice President of the United States will preside over the Senate, but is not allowed to vote except in the case of ties. The President Pro-Tempore will be elected by the members, and will preside in the absence of the Vice President. All impeachments will be tried by the Senate, and when the President is on trial the Chief Justice will preside, but no one can be convicted without a two-third's vote. No person convicted by the Senate can be given any punishment except removal from office, although they may be indicted and tried in the regular courts.

ARTICLE SUMMARY: (2 pages) Why do you think the Supreme Court justices often write concurring and/or dissenting opinions in a case? How does the Court's power of judicial review affect the balance of power in the Federal Government? As our text states, presidents are keenly aware of the potential judicial activism or restraint of the judges they appoint. Go online and find one current article in favor of each perspective: judicial activism and judicial restraint. Cite portions of each that clearly indicate the author's bias. You may find it helpful to review the section on Recognizing Bias on page 241 of your text before you begin. Include the URL of each article in your submission.

In the wake of the Vietnam War, Lee B. Ackerman and other liberals argued for strict constructionism and restraint, particularly of the kind that would limit the foreign policy powers of the president. Since World War II, the executive branch had become 'imperial' in the sense that it accumulated prerogatives to make war and treaties without reference to Congress and the courts that would have seemed monarchical to the Framers of the Constitution. Indeed, because of the constant crises in the international arena, they had usurped the powers of the other branches of government, and the judiciary simply stepped back and refused to interfere in foreign affairs. For example, even an activist Supreme Court consistently refused to rule on the constitutionality of the draft or the Vietnam War, out of complete deference to the executive branch. This was definitely not what the Founders of the United States intended, and in the wake of Vietnam and Watergate, there were calls on all sides for more checks and balances against the president by the other branches. Based on the Federalist Papers and other records from the time, the Framers clearly intended that the other branches of the government act as such a restraining influence.

Anthony D'Amato (2010) agreed with American legal realists that no theories about judicial review and strict constructionism could restrain legal practice because of the dynamic and evolving nature of modern society. He therefore concluded that the nature of law is inherently progressive rather than conservative, and that past precedents of constitutional norms from the 18th Century have little relevance to actual judicial practice. Academic theorists may imagine that such theories have an impact in the real world, but the fact is that they do not, no matter how intellectual satisfying they might be to their authors. These might seem to explain actual judicial decisions for a brief time, but then the situation changes again and old ideas become obsolete. Conservative presidential candidates and political parties have always talked about "strict constructionism," judicial restraint and limits on the review powers of courts, particularly after the civil rights revolution of the 1960s and the Right-wing backlash against the Earl Warren Court. They denounced laws made by judges, including 'liberal' judges who seemed to be too 'soft' on crime, and in reality their actions were based more on conservative political ideas than any concepts about judicial review. Even so, conservatives always find it expedient to campaign for office using certain cliches and buzzwords about adhering to the intentions of the Framers back in 1787.

WORKS CITED

Lee B. Ackerman, Lee B. "Executive Agreements, the Treaty-Making Clause, and Strict Constructionism," 8 Loy. L.A.L. Rev. 587 (1975).

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