The Constitution of 1787: Law or Politics

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The Constitution of 1787 Law or Politics
?
Stephen McDougal, Ph.D. Political Science/Public
Administration University of Wisconsin-La
Crosse September 17, 2009 133rd Anniversay
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Law or Politics
Law Rules Setting Standards of Behavior
Institutions Employment Discrimination Minimum
Wage Workplace Health Safety
Individuals No Smoking Speed Limit 65
MPH IRS Form 1040
Government Actions Constitutional
Law Constitutional Rights Free Speech
Assembly No Religious Tests to Hold Office No
Unreasonable Searches Seizures
Social/Economic Relations Contracts Professional
Licensing Academic Degrees
Which one brings us here today?
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Public Law 108447 108th
Congress DEC. 8, 2004 An Act Making
appropriations for foreign operations, export
financing, and related programs for the fiscal
year ending September 30, 2005, and for other
purposes. Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled, SECTION 1. SHORT
TITLE. This Act may be cited as the
Consolidated Appropriations Act, 2005.

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Public Law 108447
108th Congress DEC. 8, 2004
page 533 DIVISION JOTHER MATTERS TITLE
IMISCELLANEOUS PROVISIONS

• INCLUDING
• Designating the National Tree
• Improvements to Rural Airports
• Pay the Leftover Debt from the 225th Anniversary
  of American Revolution

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Public Law 108447
108th Congress DEC. 8, 2004
page 536-537 DIVISION JOTHER MATTERS TITLE
IMISCELLANEOUS PROVISIONS SEC. 111 (b) Each
educational institution that receives Federal
funds for a fiscal year shall hold an educational
program on the United States Constitution on
September 17 of such year for the students served
by the educational institution. (d) This
section shall be without fiscal year limitation.
Law or Politics?
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• Each educational institution that
• receives Federal funds for a fiscal year
• SHALL
• hold
• an educational program on the United States
  Constitution
• on September 17 of such year
• for the students served by the educational
  institution.

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Law or Politics?
Duties and Obligations!
Power Implicit Threat about Money Constrained
Choice Compelled Speech?
Purposes and Effects

• US Department of Education Regulations (70 FR
  29727, May 4, 2005)
• UW System Letter of June 12, 2005

BOTH!
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Law or Politics?
Lovers of law and lovers of sausage share one
thing neither should look too closely at how the
product is made. -- Chief Justice Charles Evans
Hughes
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Law Politics

• British Heritage Parliamentary Government

• The Framers were All Successful Politicians

• Provisions Reflected Colonial Political
  Experience

• Creation was a Political Process

• Constitution is to Govern the Government

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Statements that Create
Section 1. All legislative powers herein granted
shall be vested in a Congress of the United
States, which shall consist of a Senate and House
of Representatives.
Statements that Empower
Section 8. The Congress shall have power Clause
1 to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the
common defense and general welfare of the United
States Tax Spend Clause Clause 19 To make
all laws which shall be necessary and proper for
carrying into execution the foregoing powers
Necessary Proper Clause
Strings attached to the money?
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Create Empower
Statements of Procedure
Section 7. All bills for raising revenue shall
originate in the House of Representatives but
the Senate may propose or concur with amendments
as on other Bills. Revenue Bill Clause
Statements Limiting Power
Section 9. Clause 8 No title of nobility shall
be granted by the United States and no person
holding any office of profit or trust under them,
shall, without the consent of the Congress,
accept of any present, emolument, office, or
title, of any kind whatever, from any king,
prince, or foreign state. Section 8. The
Congress shall have power to lay and collect
taxesbut all duties, imposts and excises shall
be uniform throughout the United States
Uniformity Clause, limiting the Tax
Clause First Amendment Congress shall make no
Law abridging the Freedom of Speech Free
Speech Clause
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A Basic Political Issue What prevents the
politics of Congress from going too far e.g.
censoring cable news programs like FOX News or
MSNBC?
Who decides as a matter of constitutional law?
A Statement that Creates
Article III. Section 1. The judicial power of
the United States shall be vested in one supreme
court, and in such inferior courts the Congress
mayestablish. Judicial Power Clause
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Two Statements that Empower Section 2. The
judicial power shall extend to all cases, in law
and equity arising under this constitution, the
laws of the United States Cases and
Controversies Clause Article VI. Section 2.
This constitution, and the laws of the United
States which shall be made in pursuance
thereofshall be the supreme law of the law
Supremacy Clause
Judicial Power Clause


Constitutional Doctrine of Judicial Review
Cases and Controversies Clause

Supremacy Clause
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Rational Basis Doctrine
Taxing Spending Clause

Necessary Proper Clause
Example The 21 Year-Old Drinking Age
Federal Gas Taxes ? Highway Trust Fund
Highway Trust Fund ? Grants to States for Freeway
Construction, IF 21 year-old limit in place
Are the Strings Constitutional? South Dakota v.
Dole (US Sup Ct, 1986) Yes
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Rational Basis Doctrine
Taxing Spending Clause

Necessary Proper Clause
Example Constitution Day Mandate
Federal Income Taxes ? General Treasury
General Treasury ? Grants to Educational
Institutions with Strings
Are these Strings Constitutional? Precedent
South Dakota v. Dole (US Sup Ct, 1986) Probably
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Someone has to cope with the uncertainty and
ambiguity or else The Rule of Law will not work!
Article I. Section 9. No state shallpass anylaw
impairing the obligation of contracts.
Amendment IV. The right of the people to be
secure in their persons, houses, papers and
effects against unreasonable searches and
seizures shall not be violated
Amendment XIV. Section 1. No State shall deny to
any person within its jurisdiction the equal
protection of the laws.
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Any decision require a choice that goes beyond
the black-letter meaning of the words on paper.
Original Intent
Principles of Governance Adaptation
Principles of Justice Living Constitution
Need for Choice ? Conflict over Choices ?
Politics!