American Constitutionalism in Historical Perspective (packet)


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Richards[1].ConstitutionalLaw.Fall2005.3 (1)

Gov’t must be just, respect human rts, esp those of small minorities, and harness political power for the public good. The Articles of Confederation are defective b/c d/n do this

  • The new constitution will be better because it takes power from the state and gives it to a natl govt in three branches. More likely to be just gov’t (Lockean assumption)

  • Political process theory: Madison likes the separation b/w the ppl electing and the elected, he thinks will lead the elected to think of justice in the public interest and sometimes override what the ppl want at home—independence. But this independence of elected officials has been eroded by mass comm., the elected are now more accountable

  • Lessen the effect of faction by limiting their powers so that ppl can be secure in their rts. Concerned about unequal disposition of wealth. Madison-worse faction is race. Separate of church and state may reduce religious factions.

    1. Two ways to limit factions:

      1. Causes: liberty and homogeneity increase factions, but c/n control this b/c will take destroying all liberty or getting everyone to think the same way.

      2. Effects: C/n give power to factions, if not in service to democratic values it’s illegitimate. Faction of the majority is most worrisome b/c there are no constraints on the majority, can achieve its ends without any sense of remorse.

  • Democracy v. Representative Republic

    1. Democracy: one vote, one citizen, no check on the majority. Afraid of mob rule of one faction.

    2. Representative Republic: delegates power, less participatory. Distance is better for more qualified ppl to be the leaders. When representatives serve in natl institutions, transcend allegiances and begin to think in a natl mode. Will think of public good rather than factions and be more respectful of human rts. If everyone is a minority in their state, have to get a majority to prevail, will lead to breakdown of factions. .


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