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Lesson 2 : The Policy Making System, History and Structure of Policy Making in the United States
The American Constitutional Order
A few words about constitutions: They can be written, as is the United States Constitution, or not (as with the British constitution). Some constitutions, including those of some American states, go into great detail; others are relatively general and brief. The American national Constitution fits the latter description.
To understand the constitutional order, you first must know what is in the American Constitution. (For the text of the Constitution, please go to the Constitution of the United States page of the United States Senate website.)
The first order of business in understanding the Constitution is simply to lay out the various articles and what they say. Do look at the greater detail in the Constitution itself, as the following is just a very basic outline of the contents.
Article I
Article I defines the structure and powers of the House of Representatives and the Senate (collectively known as Congress). The Senate is made up of two senators for each state, no matter how large or small a population it has; this provides equal representation. The House of Representatives allots representatives by a state's population. A small state (in terms of population) will have only one member in the House; more populated states will have more representatives.
Section 7 of Article I states that revenue bills will originate in the House of Representatives; more powers, including the power to levy taxes; borrow money; regulate commerce with other countries, among the states, and with Native Americans; and declare war, are outlined in Section 8. Finally, Clause 18, known as the elastic clause or necessary and proper clause, states that Congress has the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (U.S. Const., art. I, §8).
Watch Video 2.1. The Elastic Clause Explained in 3 Minutes
KEITH HUGHES: Hey. What's up guys. Welcome to Hip Hughes History. I was just talking to a kid, and I asked the kid what the Elastic Clause was, and he said it means Congress can do anything it wants that's necessary and proper. And I said, doh, you are wrong. Everybody out there, we need to understand the Elastic Clause if you're going to understand federalism in the least. So let's start really quick with a definition. And if you know who I am, you know I do this all the time.
Federalism is the division of power between the Federal Government and the states. And how we define that is with the US Constitution. So basically, the state power rests in the 10th Amendment. And the 10th Amendment, Reserved Powers states that anything that's not in the Constitution, that's not given to the Federal Government to do is reserved for the states, which means that the Federal Government gets its power from the Constitution.
So when we look at the constitutional and we look for governmental power, federal power, it's really all over. But its biggest concentration is in Article 1, Section 8. This is called Delegated Power. Article 1 is legislative and Article 8 is a list of Delegated Power We can start with some really big ones. For instance, it says to provide for the common defense and promote the general welfare. It gives the government the ability to coin money and collect taxes. It gives the government the ability to regulate trade between the states in commerce and to promote the useful arts, and there's kind of military stuff in there.
And then we get to the Elastic Clause. So if you're going to learn anything, know the 10th Amendment and know Article 1, Section 8, clause 18. It's the last one in Delegated Powers. And we could put it up on the wall.
KEITH HUGHES (READING IN DEEP VOICE): To make all laws which shall be necessary and proper for carrying into Execution the forgoing Powers and all other Powers vested this Constitution and the Government of the United States, or in any Department or Officer thereof.
KEITH HUGHES: So if the Federal Government is going to do it, and it's not specifically in the language of the Constitution, is it constitutional? Can we do that? Yeah. If we can rationalize that what we are doing is to execute one of those Delegated Powers. So if you're an original intentionalist, you're looking at those words very carefully, and you want, really, a direct line between the law being passed and the actual words, and maybe even what you think the founders meant as intentionalism. And you're really going to limit the Federal Government. And that's definitely a legitimate ideology.
On the other side of the coin, we have language in the Delegated Powers that's a little broad to promote the general welfare, to regulate the commerce between the states. So that type of language has been used with the Elastic Clause next to it to do some things that aren't directly in the Constitution. The National Bank was created because the government has the power, according to the Constitution, to borrow money, to establish credit. And Hamilton argued that the Elastic Clause gave the government that corresponding power to create a national bank to execute that foregoing power.
[CHIME]
So you decide. You decide whether you want to be somebody who is expansionary, and that's at the expense of the 10th Amendment, perhaps, or somebody who is maybe quite limiting in the Federal Government's power, you are in love with the 10th Amendment. And that might maybe hamper the government's ability to solve a very legitimate problem. But you get to decide. Because we live in America.
All right, there you go. The Elastic Clause, Article 1, section 8, clause 18. Make sure you watch other lectures and you know where attention goes, energy flows. We'll see you next time on the YouTube's.
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Articles II and III
Article II speaks of executive power, focusing most directly on the role of the U.S. president. The president's authority is not spelled out in detail; Section 1 says simply that "the executive Power shall be vested in a President of the United States. . ." (U.S. Const. art II, §1). Section 2 spells the powers out a bit more—the president is considered the Commander in Chief of the military, can pardon those who commit offenses against the United States, and can appoint ambassadors and federal judges (with Senate consent).
Article III gives the Supreme Court of the United States foremost judicial power; other lower federal courts have authority as Congress establishes. The article also describes the types of cases that these federal courts can hear and decide upon (their jurisdiction).
Articles IV–VII
Article IV focuses on each state's interests, such as full faith. A decision made in one state court should be respected by other state courts to prevent forum shopping, in which those who lose a case in one state seek a better judgment in another. Citizens in one state have the same privileges as citizens in a different state (such as the ability to travel freely). Section V outlines how the Constitution can be amended.
Article VI includes the supremacy clause, which states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, shall be the supreme Law of the Land. . ." (U.S. Const., art. VI). Finally, Article VII describes how the Constitution is to be ratified and empowered to become the law of the land.
Amendments
Over time, 27 amendments have been added to the Constitution; the first ten, enacted shortly after the Constitution was ratified, are known as The Bill of Rights. You might want to take a look at these now; they're included in the online version of the Constitution.
References
U.S. Const. art. I, §8.
U.S. Const. art II, §1.
U.S. Const. art VI.