Friday, May 23, 2014

The Post Constitutional Era! Part II

Part I, The Preamble

Article I: Definition (1789)
Article I begins by defining the first of three separate powers of the government. It establishes a bicameral legislature: a Senate and a House of Representatives. It also explains the form, function, powers, and limitations of the legislative branch of government.

Notes for this section:
Separation of Powers
The Legislature

As I have said before the Founding Fathers were smart, practical and well read men, and before we go further I would like to establish how they developed the foundational thinking behind the Constitution.  Remember, the Constitution took eleven years, a lot of discussion and passionate arguments.  Americapedia has this to say regarding the works of others and the impact history had on these men.
The Magna Carta is the oldest example of a compact in England. The Mayflower Compact, the Fundamental Orders of Connecticut, and the Albany Plan are examples from the American colonies. The Articles of Confederation was a compact among the states, and the Constitution creates a compact based on a federal system between the national government, state governments, and the people. The Hayne-Webster Debate centered around the nature of the compact created by the Constitution.

The Spirit of the Laws (1748)
Charles de Secondat, Baron de Montesquieu (1689-1755), a French philosopher and jurist, wrote The Spirit of the Laws. In this work, he pointed to the English Bill of Rights as an ideal model of government. He also posited that
• the best form of government combines monarchy with administrative authority made of distinct and separated powers (the legislative, executive, and judicial branches) with checks and balances of power.
Punishments should not be excessive, but should be moderate, and should fit the crime.
• Citizens should respect the beliefs of others and practice religious toleration.
Blackstone commented on Montesquieu’s theories as “constitutionalism of liberty and complexity.” James Madison was greatly influenced by Montesquieu and incorporated many of his ideas—most notably that of separated powers —into the Virginia Plan and finally the Constitution and Bill of Rights. Source:

The English Bill of Rights (1689)
The English Bill of Rights is an English precursor of the Constitution, along with the Magna Carta and the Petition of Right. The English Bill of Rights limited the power of the English sovereign, and was written as an act of Parliament. As part of what is called the “Glorious Revolution,” the King and Queen William and Mary of Orange accepted the English Bill of Rights as a condition of their rule.
The Bill of Rights asserted that Englishmen had certain inalienable civil and political rights, although religious liberty was limited for non-Protestants: Catholics were banned from the throne, and Kings and Queens had to swear oaths to maintain Protestantism as the official religion of England. Unless Parliament consented, monarchs could not establish their own courts or act as judges themselves; prevent Protestants from bearing arms, create a standing army; impose fines or punishments without trial; or impose cruel and unusual punishments or excessive bail. Free speech in Parliament was also protected. These protections are roots of those in the Constitution and the First, Second, Fourth, Fifth, Sixth, and Eighth Amendments.  Source:

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