(Note: these learning modules encompass the actual class lectures, and are designed for those students who have to miss class through no fault of their own, and also as a refresher for all students. Bold print in the notes are what the professor writes on the board.)

LEARNING MODULE: WEEKS 2-3, The Constitutional Foundation

3 Functions of Government:

In order to prevent a one-person dictatorship, in democracies the three powers of government are typically divided between three different institutions. Those 3 powers are:

1) Legislative- making the laws

2) Executive- enforcing the laws, interpreting the laws

3) Judicial- final interpretation of the laws, assessing penalties for their violation

With all 13 original American colonies coming from Great Britain, the British form of government is an important model for the American one. Even in the late 1700s, Britain separated these powers. A bicameral (two chambers) Parliament consisted of an upper chamber, House of Lords, consisting of hereditary landowning nobles, and a lower chamber elected by those who owned property or had wealth. The King and the Prime Minister (chosen from the House of Commons) were the executive authority. And, Britain has a court system.

Each of the 13 American colonies had their own colonial governments. However, the executive power was a colonial governor appointed by the British King and coming from Britain, and the upper chamber was a Governor’s Council appointed by the governor from among the leading colonial families (wealthy, well educated, important occupations). The lower chamber of the colonial legislatures was elected by the American colonists, so Americans had confidence only in that body. When the British Parliament raised taxes on the American colonists, or when the colonial governors sought to raise taxes, the American colonies revolted against Great Britain and sought independence.

The Declaration of Independence has 4 important concepts, drawn from an English philosopher, John Locke. They are:

1) Every American has natural rights given them by God. Those rights are life, liberty, protection of their private property, and freedom to pursue happiness.

2) Limited government. There should be no all-powerful King, who claims that he has been appointed by God to rule however he wishes. No government should be able to take the people’s natural rights.

3) Consent of the governed. Our government can exist only by the consent of the governed- the people. Thus, we have elections whereby voters can choose their elected officials. At least, voters vote for officials, who then select other officials, which is still consent of the governed, but it is a more indirect democracy.

4) The right of revolt. When any government becomes so destructive of the people’s natural rights, they have the right to revolt against it. In this case, the right to become an independent nation.

Class discussion. Do you think that our current government is so unresponsive and so tyrannical that we should revolt against it? We saw national protests against restrictive shelter-in-place Covid orders, and against the police killings of African Americans. Some activists say that the police should be de-funded. Some immigrant rights activists say that ICE (immigration enforcement) should be de-funded. Some liberal states constantly sue President Trump over his executive orders, such as in his being tough on illegal immigration. Many conservative states sued the Biden administration over their lenient immigration enforcement policies or their tough rules on the oil and gas industry. Indeed, we even saw an insurrection by extreme Trump supporters on January 6, 2020 who sought to prevent Biden from being declared President! Should states in the more liberal Northeast and Pacific Coast perhaps seek to secede from the nation? Or, should they all seek more peaceful, orderly change?

The American colonies won their War of Independence, so initially we just had 13 independent nations or states. Americans then came up with a weak form of a central government called the Articles of Confederation. Each state was jealous of its own power and independence, and Americans thought of themselves as Virginians or New Yorkers, and not as Americans. How was this Confederate government weak and unworkable?

1) It had a unicameral legislature, only one chamber in their Congress, and each state regardless of population had one vote. Kind of like the United Nations General Assembly, every nation has one vote.

2) There was no independent, energetic executive. A council of states drawn from this Congress exercised the executive power.

3) There was no national court system. So if Congress passed a law, how could it be enforced? Ask the states and their state courts to enforce it. They could say, we don’t agree with that law, we won’t enforce it.

4) Congress could make appropriations, but they could not require taxes be raised. They could only “ask” the states to raise taxes for them. Good luck! Like asking NATO countries and UN countries to pay their fair share to keep the organizations going.

5) Congress could declare war, but it could not compel anyone to serve in the military. They could only ask the states for troops. Again, good luck! The Vietnam War waged against the communist North Vietnamese was an unpopular war in more liberal states like Massachusetts, so why would such a state provide troops to fight in it. We had a federal draft then and in previous wars.

6) The Confederate government could not regulate trade between the states, or between the nation and other nations.

7) Any amendments (changes) in this Confederate constitution required unanimity- all 13 states had to agree to the change. Therefore, no changes were made.

After Shays’ Rebellion, a revolt by debtor farmers against the banks that were foreclosing against their farms, most Americans realized that we needed a stronger form of central government. Banks and merchants were scared that the economic system would collapse, and that their loans would never be repaid. So the Confederate Congress called for a national convention to be held to consider changing the Articles of Confederation. This convention decided to throw out this unworkable government entirely, and write up a new constitution. This convention was the Philadelphia constitutional convention. The delegates were a higher socioeconomic status elite (well educated, high incomes, prestigious occupations), who also were very politically knowledgeable about forms of government across the world and throughout history. They were also all white men, a controversial topic today.

So, big challenge. How are you going to get 13 virtually independent states to agree to give up much of their power? Some of these are large states with large populations. Others are small states with little population. Large states of course wanted a unicameral (one chamber) legislature with the numbers of delegates from each state apportioned based on each state’s population. Small states protested, and said that they would have no power in such a system- their numbers would be completely overwhelmed by the large states. They wanted to retain the old, each state has one vote, system. It looked like we wouldn’t even be able to have one federal government, and we would just keep 13 separate nations. But then, the delegates came up with The Great Compromise. There would be a bicameral Congress: the upper chamber, the Senate, would have state equality, as every state would have two Senators; the lower chamber, the House of Representatives, would be apportioned based on each state’s population. Therefore today, a big state like California has 53 U.S. Representatives, while Mississippi has only 4. However, both states have 2 U.S. Senators each. Today, some people, especially liberals, say How Undemocratic! Why even have a Senate, aren’t we one nation, one people? It goes back to our nation’s founding. But it also goes back to the diversity of our nation, which still exists. Do we in Mississippi want to have our lives dominated by the culture of California? Hey, maybe we’d still be locked up for our own good! (By the way, I met a whole family from California during the Covid lockdown, using the exercise equipment on that hill by the lake outside the Sanderson Center. They had fled the state, and when they said they had moved to Mississippi, I responded, “Good choice.” Their answer: “We love it here!” Freedom!!)

Much more controversial was the other major compromise, the Three-Fifths Compromise. How should slaves (non-free people) count in terms of direct taxation on each state, and in terms of apportionment of the House based on population? Ruling whites in both regions were hypocritical and self-interested. Southerners claimed slaves were property, but they didn’t want to pay taxes to the federal government on their economic value; instead, Southerners wanted slaves to count as people, to increase their power in the House. Northerners were similarly inconsistent, wanting to tax states for their wealth which would include the economic value of slaves, but not wanting to count slaves as people in determining the size of House delegations (the North didn’t want to increase the political power of the South). The 3/5 compromise was that slaves would count for both purposes- for both taxation and House representation. But to reduce the tax burden and reduce the political power granted the South, each slave would count as only three-fifths of a free person. Some whites argued that the labor of a slave was worth only three-fifths of a free person. So, the very founding of our nation was based on this racist, slave owning mentality. No wonder even today there are bitter racial divisions in our nation. What do you think? Should the Founders have refused to make such an “immoral” political deal? Should our constitution have prohibited the institution of slavery? One student points out that if they had, the Southern states would not have ratified the new constitution. So then, you would have had two, or more nations. So instead, we kicked the can down the road, so to speak, and in the 1860s had a bloody Civil War that cost more American lives than any other war in our history. So, where do we go from here, given the recent national debate over racial injustice and DEI policies??

I’m running out of time, long lecture. In short, there were two other compromises. Congress could not pass an export tax, so there would not be federal interference in the South marketing its crops abroad. Instead, we historically have had all sorts of tariffs and embargo threats, so what does this clause matter? The other compromise was that Congress could not regulate or prohibit the trade in slaves until 20 years had passed. After 20 years, Congress did prohibit the slave trade, but many southerners ignored this federal law. Don’t worry about these two compromises for the test.

Finally, we come to an important topic that you should really know for any test. It is Checks and Balances! Well, we just revolted against a tyrannical King, we don’t want another dictatorship. How can we prevent it? We’ll have the three powers of government divided into three different branches of government. We proposed a President exercising the executive power, a bicameral Congress exercising the legislative power, and a Supreme Court exercising the judicial power. So why not make sure that none of these separate institutions can operate solely by itself? Why not ensure that each branch of government can check the power of the other branches of government? Indeed, why not divide the Congress’ power itself? So, remember the following 7 ways that each branch of the federal government can check the powers of other branches:

1) Congress actually checks its own power! The House and the Senate keep watch over each other, and check each other’s power. That is, any bill must pass both chambers in identical form, before the bill can be sent to the President. So if the House wants to help out the larger states with mass transit funding, and the Senate says don’t forget about the more rural states that need highway support, guess what? Members from both chambers get together, take the two different bills coming out of each chamber, and engage in compromise. They end up with something in the middle of the two chambers, typically (maybe funding for both mass transit and highways). The requirement that a bill pass both chambers in identical form also prevents cases where one party or ideology may impose its will on the other. President Biden and the Democratic controlled House of Representatives would have liked to force states to make it easier to vote, and would have liked to prevent states from outlawing abortion, but the evenly divided Senate refused to pass such bills that would have infringed on the rights of the states.

2) But what if both chambers of Congress get taken over by the same political party, and they decide to abuse voters of the other party. Well, then you have the Presidential Veto. The President can veto that bill, and Congress needs a much larger majority to pass it over his veto. In the 1994 elections Republicans gained control of both Congressional chambers and they proceeded to cut spending for important federal programs; Democratic President Bill Clinton vetoed those appropriations bills that had those cuts. His vetoes were not overridden (sometimes Congress did not even try to override them).

3) But what if a President gets drunk with power? He vetoes bills that would reduce his abuse of powers, or he vetoes bills that would help many Americans? Then, Congress can vote to override his veto, which takes a separate two-thirds vote in each chamber with each chamber voting separately. Presidents Johnson a Democrat and Nixon a Republican aggressively prosecuted the Vietnam War, and even bombed neighboring nations and invaded them. The Democratic-controlled Congress finally passed a War Powers Act requiring that Presidents get the permission of Congress to commit troops to hostilities abroad. President Nixon vetoed it, arguing that it interfered with his constitution rights of being Commander in Chief of the Armed Forces and his right to protect the American people. Congress argued that under the constitution, it has the power to declare war. The Senate voted to override his veto and did so easily; the House also voted to override his veto, but it was a closer vote (284-135). Therefore, this War Powers Act is a federal law passed over the President’s veto.

4) But what do you do if the President is so drunk with power, so tyrannical, that you think it would be best if he were completely removed from office? The constitution gives Congress the power of impeachment. Congress can impeach and remove the President from office, and disqualify him from ever holding any federal office. The constitutional grounds that must be met are committing “Treason, Bribery, or other high Crimes and misdemeanors.” It is a two-stage process. The House of Representatives must impeach (accuse) by a majority vote (or more, of course). The Senate must convict by a two-thirds vote.

Four presidents have undergone this process: Andrew Johnson (a Tennessee Democrat) was accused of undermining Congressional Reconstruction acts, and was impeached by the House, but the Senate failed by one vote to remove him from office; Richard Nixon was accused of abuse of power and obstruction of justice, and the House Judiciary Committee voted to recommend his impeachment to the full House, but he resigned before a vote of the entire House of Representatives was held (his allies told him that he had lost the support of the Senate); Bill Clinton was accused of perjury (lying under oath in a federal criminal probe and in a civil sexual harassment lawsuit), he was impeached by the House, but he was acquitted by the Senate; Trump most recently was impeached by the Democratic-controlled House twice, but then acquitted by the Senate. More on his case later. Cabinet officials are also subject to the impeachment process; a Secretary of War under President Grant and the Homeland Security Secretary under Biden were impeached for receiving kickbacks and immigration enforcement laxity, but both were acquitted (the Senate didn’t even consider the party-line vote in the Biden case).

5) The Supreme Court is an important body also. It has the power to declare federal laws unconstitutional, and therefore null and void. An example was in 2013, when they struck down the federal Defense of Marriage Act, an Act passed after some states began legalizing same-sex marriages. This federal act barred federal benefits (such as federal inheritance tax law) to same sex marriages. The Court held that only states could define what marriage was, and the federal government could not treat marriages of same sex or opposite sex couples differently if a state had legalized both (this would violate the 5^th amendment clause whereby the federal government could not deprive anyone of life, liberty, or property without due process). Two years later, the Supreme Court applied the 14^th amendment prohibition against states denying their citizens due process and equal protection of the law to the states, and held that states could not deny the “fundamental right of individual dignity and autonomy” of marriage to same sex couples.

6) Indeed, the Supreme Court is so important that it can declare Presidential actions unconstitutional. President Nixon had made tapes of his conversations in the Oval Office for historical purposes and to write his memoirs. After he was told in early 1972 (re-election year) that some of his campaign staffers had been arrested for breaking into the national Democratic headquarters at the Watergate building seeking campaign secrets, he told his staff members that the burglars should “cover up, plead the 5^th”, that his staff should pay hush money (humanitarian aid to their families) to the burglars, and that the CIA (Central Intelligence Agency) head should tell the head of the FBI to cease its investigation of the burglars for national security reasons (some burglars were former CIA employees). Indeed, the CIA head did tell the FBI head to cease its investigation, they did for three days, and then thought better and reversed themselves and continued the investigation. Even a 3-day delay is regarded as a violation of federal law against Obstruction of Justice. Going to trial, the burglars subpoenaed the Nixon tapes to prove that they had presidential authorization for their actions, and President Nixon claimed executive privilege (the implied right of a President to refuse to disclose executive branch information that would interfere with his Chief Executive powers under the constitution). The Supreme Court by an 8-0 vote that included Nixon’s three appointees declared Nixon’s actions unconstitutional. The Court held that a broad claim of executive privilege must fall before the specific request for information relevant to a criminal trial. Nixon released the tapes, and he resigned. The Supreme Court more recently overruled Biden executive orders attempting to repudiate many college student loan debts, as well as Trump’s more aggressive immigration enforcement actions.

7) And so, the Supreme Court is very powerful, but Congress can impeach and remove Supreme Court judges (and other federal judges) for the impeachable offenses of “Treason, Bribery, or other high Crimes and misdemeanors.” Same process as for President, you need a majority vote of the House, and a two-thirds vote of the Senate. Only one Supreme Court judge has ever been impeached by the House, and that was in 1804 (Samuel Chase), and he was acquitted easily by the Senate; Chase was a known Federalist Party member, and the old Republican Party gained control of Congress with Jefferson’s election as President in 1800. In the late 1960s many conservatives were angry over the Earl Warren Supreme Court decisions that protected the constitutional rights of criminal defendants from questionable state actions, and purchased billboards reading “Impeach Earl Warren,” but it never happened. More recently, when Trump’s Supreme Court nominee Brett Kavanaugh was accused of attempted (or actual) sexual assault as a high schooler, some Democrats threatened to impeach him after he was confirmed by a narrow 50-48 vote (only one Democrat and one Republican broke party lines). A few lower federal court judges have been impeached and removed from office for misconduct. In 2010 judge G. Thomas Porteous Jr. of the Eastern Louisiana federal district court was impeached and removed from office for accepting bribes and for perjury.

A now, a brief review of the various impeachment accusations against President Trump. What can I say? Trump is a businessman, entertainer, and salesman. When campaigning, he showed little knowledge of government; he was the ultimate “outsider”. He became President in the 2016 election by winning the electoral college, though he lost the popular vote (more on the electoral college later). His campaign staffers had had one meeting with a Russian promising dirt on the Democratic candidate Hillary Clinton, his incoming National Security Advisor during the transition period had a conversation with the Russian ambassador to the U.S. regarding foreign policy issues, and the Obama Justice Department started an FBI investigation into possible Russian involvement in the 2016 presidential campaign. President Trump thought that under the federal constitution he was the chief executive, so he fired the FBI chief (who reports to the Attorney General), but the FBI and Justice Department have a long tradition of independent actions and neutrality. So, the Justice Department appointed an independent special counsel (Bob Mueller) to investigate possible Russian collusion with the Trump campaign and possible obstruction of justice by Trump of the FBI investigation. The Mueller Report found that no American had wittingly been involved in the Russian interference in our election (Russian operatives had waged a modest social media campaign supporting Trump and seeking to divide our nation politically). The Report did provide evidence that Trump attempted to interfere with the investigation, but everyone he attempted to influence rejected his attempts; it is also possible that the initial investigation into the Trump campaign may have been illegal, as federal investigators made over a dozen errors in their application for permission for their surveillance of Americans. So Congress decided not to pursue impeachment charges against Trump for those reasons. But then President Trump in a phone conversation with the new reform leader of Ukraine (an east European country that used to be part of the Soviet Union) suggested that this foreign leader investigate alleged corruption of Democrat Joe Biden’s son Hunter, who had been hired as a lobbyist for a Ukrainian oil company while his father was Vice President under Biden. Also, the Trump administration was slow in releasing lethal military aid to Ukraine, a country that like Georgia was partially occupied by Russian sympathizers and had even lost its Crimea part to Russia in 2014. The Trump administration did eventually release the military aid before the end of the fiscal year, and did so without an explicit promise by the Ukrainian government to investigate Biden’s son. Biden’s son had made hundreds of thousands of dollars from his lobbyist work, even though he had no knowledge of the oil business; at the time, his father was Vice President, and Obama administration officials were concerned over the appearance of impropriety, but they didn’t want to bother the Vice President because at the time his other son was dying of brain cancer. The Democratic party-controlled House of Representatives voted to impeach Trump for abuse of power regarding holding up the Ukrainian military aid in return for help in his 2020 political campaign, and also impeached him for obstructing a Congressional investigation by refusing to provide all requested witnesses and documents. The Republican controlled Senate (at the time) voted to acquit Trump with the only exception to the party line vote being Republican Mitt Romney of Utah. Trump made history by being impeached a second time, for “incitement of insurrection,” when he urged his supporters to protest at the U.S. Capitol on January 6, 2021 during the counting of the electoral votes, which resulted in a three-hour occupation of the Capitol by the protesters. Weeks later, the Senate acquitted him, partly because he was no longer in office. Senators wanting to convict him also wanted to use the constitutional provision that permitted them to disqualify him from ever holding any future federal office. Can you follow this? I’m not making this up! It’s like a bad soap opera!! So what do you think? Should Trump have been removed from office the first time? Should he have been permitted to run for re-election after the second trial? The soap opera continued, as the Democratic controlled House appointed a special January 6 Commission chaired by our state's own Congressman Bennie Thompson, which acted like a very capable prosecutor presenting evidence to a grand jury that President Trump more likely than not was guilty of two federal crimes (assisting and providing aid and comfort to an insurrection). Former President Trump was then indicted for two federal and two state crimes- falsifying business records to conceal hush money payments to a porn star (New York state law), attempting to subvert the election outcome in Georgia (a Georgia state racketeering law), willfully retaining classified documents (federal law), and charges of fraud over the 2020 election outcome and obstruction of the electoral college vote (federal). Democratic-controlled states of Colorado, Maine, and Illinois attempted to keep Trump off of the ballot in 2024, arguing that he had violated the post-Civil War 14^th amendment prohibiting anyone who had been in “insurrection or rebellion” against the federal government from holding federal office, but the U.S. Supreme Court unanimously held that states could not enforce this amendment against Presidential candidates.

Now we move to another important subject that may be on the test, and that is the Selection Methods whereby federal officials are selected. There are four different institutions (since the House and Senate are different), and you should also know for each of them how the process has changed over the years. That is, the Founding Fathers were kind of elitist, and distrusted the average voter (many of whom were illiterate), so they set up an indirect method of selecting many offices. They wanted to keep the most important officials most isolated from the masses. As our country became better educated, and as average citizens demanded more of a direct voice in their government, a more direct democracy evolved for some institutions. Also, we learned that the power of the President should be limited. Finally, make sure that you know the terms of office (in years) for each institution. So, here we go:

1) The House of Representatives is closest to the people, as even originally it was elected by the people. Also, it had the most frequent elections, every two years, as members had only a 2-year term. So every two years, both presidential and midterm years (halfway in a president’s term), all members of the House are up for election. That hasn’t changed over the years. Such frequent elections make House members very responsive to the desires of their constituencies.

2) The Senate is a bit of a more elitist body, which would be more insulated from the masses and the public passions. More elitist like the House of Lords and the Governor’s Councils. Senators were chosen for six-year terms. The beauty of 6-year terms is that if a new House tried to move quickly in passing unwise legislation reflecting the public’s current passion, the Senate could say no, or hold up the legislation. Only one-third of them are up for election every two years, so two-thirds of that body could be more courageous. Further insulating the Senate from the people is that originally, the constitution said that the state legislatures would pick the U.S. Senators. The people had only an indirect effect on Senators- people voted for their state legislators, and their state legislators selected the Senators. That procedure did change over time. During the Progressive Era, reformers got tired of U.S. Senators being captives of the important economic interests of their states (which controlled many state legislatures), so they demanded a constitutional amendment. The 17^th amendment adopted in 1913 required that states hold popular elections to select U.S. Senators. (Up to that time, states decided how their Senators would be selected, and only a few let the people vote for them.)

3) The President was set up as an institution even more insulated from the people. The constitution stipulates that the President will be selected by an electoral college (reflecting the Great Compromise, each state has a number of presidential electors equal to the number of its U.S. House and Senate members), and the state legislatures will select the presidential electors. So, very indirect influence of people- people elect the state legislatures, the state legislatures pick the presidential electors, and the electors pick the President. That changed during the Jacksonian Democracy era of 1828-1860, as people demanded more of a direct democracy, and every state passed state laws providing for a popular election to determine their state’s electors (who were pledged to support particular candidates). Today, states typically drop the actual names of the people who are electors, and just list on their ballots the names and parties of the presidential candidates. As such, when you vote for Trump or the Democrat, that candidate’s entire slate of electors gets your vote (Mississippi has 6 electors, as it has 4 House members and 2 Senators). As such, whomever gets the most votes in the general election (a plurality, not necessarily a majority) gets all of that state’s presidential electors. Every state except two have that winner-take-all system. Why? States believe that that system increases their importance, encouraging candidates to visit their state and to care about its concerns. Mississippi for example might be a smaller state, but 6 votes might make the difference in a close election. But remember, the federal constitution still leaves it up to the state legislatures to decide how to divide their electoral votes. This change during Jacksonian Democracy was done by the states, not by any federal constitutional amendment. As such, two states divide their electors in a different way that they think is more democratic and fairer to those who voted for the losing candidate. Maine and Nebraska give two of their electoral votes to the statewide winner, and 1 electoral vote to whomever wins each of their U.S. House districts (Maine has 2 and Nebraska 3 house districts). Usually, this electoral college system merely magnifies the winning margin of the presidential candidate, as they tend to win a larger percentage of the electoral vote than they do the popular vote. But in the past twenty years, we have had split outcomes. Democrats Al Gore in 2000 and Hillary Clinton in 2016 won the popular vote nationally, but lost the electoral vote. Why? Well, they won Democratic states like California and New York in landslides, but then narrowly lost some key battleground states (like Ohio and Florida for Gore, and much of the Rust Belt states for Clinton). That’s how our constitution works. What do you think? Should we change (amend) the constitution, abolish the electoral college, and require that the popular vote winner nationally be selected as President? Some say yes, but look at the increased regionalism in American politics. There is a world of difference between Mississippi and California. The current system shows the importance of states, and the importance of their differing cultures.

It is also important to know that the term of office for the President is 4 years. Originally, there was no limit on the number of terms a President could serve. Washington established a 2-term tradition, as did Jefferson. The only person who violated that tradition was Franklin D. Roosevelt (FDR), who was elected to 4 terms; in 1940 he won a third term arguing that the world was close to world war, and in 1944 he won while we were in World War 2. Finally, he died the next year, and the change was that we adopted the 22^ndconstitutional amendment in 1951 to limit a President to only 2 terms. Many people felt that the President had become too powerful.

4) The Supreme Court is a very elitist body, insulated from the people. The justices are nominated by the President and confirmed by the Senate (by a majority vote). So, the Supreme Court judges are selected by a President selected by an electoral college, and then confirmed by a body with 6-year terms that originally was selected by the state legislatures. They are also very insulated from the people by having life terms (“Good Behavior” terminology). The only way to get rid of them is through impeachment (which has never happened yet), or if they retire or die. Clearly, this body would really protect the constitution and our liberties from the ignorant and emotional masses. One example of that was the Brown v. Board of Education decision in 1954 which struck down state laws requiring racial segregation in the public schools, a very unpopular decision among southern whites, but a decision that finally protected the rights of racial minorities. No real change in these procedures over time, though Biden Democrats floated the idea of fixed 18-year terms in reaction to the conservative-oriented court that he faced.

Time flies, now I have to briefly cover other issues that I typically don’t ask about on the test, but they’re still useful to know.

There are few constitutional requirements for holding office. Given the relative importance of the people in the different offices, the House has the more lenient requirements, the Senate greater requirements, the President the greatest. So age, you must be at least 25 for the House, 30 for the Senate, and 35 for the President. You must be an inhabitant of the state for the House or Senate, and must have been a U.S. resident for 14 years at least before becoming President. You can be a naturalized citizen for Congress, but you must have been a U.S. citizen at least 7 years for the House and 9 for the Senate. For the President, you must be a natural born citizen. That means, you must have been born in the United States, or you must have a parent who is a U.S. citizen. So an undocumented (or illegal) immigrant born in the U.S. can become President; watch out Trump! The post-Civil War 14^th amendment says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” and their state. Trump would like to strip children born in the U.S. of illegal immigrants of their U.S. citizenship, arguing that their parents were here illegally and therefore not subject to U.S. laws, but past practice has only stripped children born of foreign diplomats of U.S. citizenship.

Congress’ powers, under the constitution are important. 1) They have the money powers, they make appropriations (power of the purse), they raise taxes, they coin and borrow money. But while these powers are listed in Article 1 under Congress of the constitution, these powers must all be done by law. And remember that the President does have the veto power. (It’s interesting that despite the bitter partisan divide existing in America today, our institutions often unite during a national crisis. By law we did pass very expensive emergency legislation to help people and businesses hurt by the Coronavirus, we did pass emergency financial industry bailout legislation in 2008 and 2009, and we did pass important laws after the 9-11 terrorist attack.) 2) Congress has the power to regulate commerce between the states, and between the U.S. and other nations. While Congress has given the President considerable power to apply those laws in specific circumstances (permitting trade wars), Congress still does vote on important trade bills such as the old NAFTA. In December and January 2020, Congress did vote in favor of Trump’s new USMCA trade agreement between the U.S., Mexico, and Canada. The vote was about a 90-10 split in favor, as White House trade negotiators wisely took into account Democratic concerns and desires in renegotiating the agreement. Trump in his second term threatened tariffs on every nation in order to getting better trade deals for the U.S.; if Congress had wanted to, they could have passed legislation limiting his powers. The interstate commerce clause gave Congress the constitutional authority to pass the 1964 Civil Rights Act, outlawing racial discrimination in public accommodations (private businesses that serve the public). 3) Congress has the power to declare war. An important power. It last used this power officially in World War 2, as FDR came to Congress after Pearl Harbor and asked for a formal declaration of war against Germany and Japan (and achieved Unconditional Surrender). The Korean War was pursued under a United Nations Security Council resolution that we voted for (the Soviet Union had unwisely been absent, as they were protesting the UN’s refusal so far to recognize the communist victory over mainland China). The Vietnam War was authorized by Congress under a Tonkin Gulf resolution that gave the President power to take “all necessary actions” to protect American interests in the southeast Asia area (President Johnson proceeded to send half a million young men to fight there). In both wars, Congress did authorize a forceable draft of military age men. After the War Powers Act was passed, Congress did vote to authorize our wars in Afghanistan and Iraq. In 2025 the U.S. House voted against an impeachment inquiry into Trump’s preemptive strike against Iran’s nuclear program, with pro-impeachment Democrats arguing that Trump had not consulted with Congress beforehand. So, Congress does not formally declare war anymore, but it does have an important role in authorizing and supporting war actions. Perhaps we no longer wanted to get too formal in the nuclear age and during the Cold War with the Soviet Union, since an unconditional war could lead to a nuclear war. 4) Other powers. We have a national post office that assures delivery everywhere, but Trump was upset that they’re not charging enough and are running a deficit. Congress makes rules for the territories, and rules for them to enter as states; the debate over whether new states would enter the nation as a free or slave state of course led to the Civil War. Congress exercises exclusive legislation over the District of Columbia, but they have granted D.C. considerable local governmental powers; D.C. does not have any (voting) Congressional representation, but it does have 3 electoral votes for President.

Differences between the two Congressional chambers. 1) Under the constitution, bills raising revenue must originate (start) in the House (since it is closer to the people), but they can of course be amended in the Senate. In the past, this meant that the House Ways and Means Committee and the House as a whole got first crack at taxation legislation, and the Senate Finance Committee and the full Senate would take their bill, and make its own changes in it. Today, it’s more like just passing another bill- it must pass both chambers in identical form, eventually. However, Trump’s Big Beautiful Bill in 2025 extending his tax cuts and cutting Medicaid was passed by the House first, the Senate made changes in it, and the House then approved the Senate’s version. 2) The Senate has the advise and consent power. By a majority vote, the Senate must confirm (approve) presidential nominations of executive branch heads, our ambassadors to other nations, and all federal judges. This is an important watchdog power. President Nixon had two Supreme Court justices rejected by the Senate, one for conflict of interest charges, and the other after being accused of racism and being mediocre. President George Herbert Walker Bush (the father) had Senator Tower rejected by the senate for the position of Secretary of Defense as he was accused of being a drunk and of chasing a woman around his desk. Betsy DeVos, a Republican party activist from Michigan and a supporter of school choice and vouchers opposed by public school forces, was confirmed for Trump’s first Secretary of Education by a 51-50 vote, as Vice President Pence broke the tie. Trump’s Secretary of Defense in his second term, Pete Hegseth, was also confirmed by a 51-50 vote. 3) Treaties must be ratified by the Senate, and they are so important that they require a two-thirds vote. Some important examples. The Senate rejected President Wilson’s treaty ending World War 1 and making us members of the first world organization, the League of Nations, as they feared that we would lose some of our national sovereignty; the League became so weak that Germany was able to rearm, and World War 2 occurred. After World War 2, President Truman negotiated the NATO military alliance between the U.S., Canada, and West European nations, and the Senate easily ratified it, and we sent a few hundred thousand troops back to Europe; this successfully prevented the Soviet Union from invading western Europe. (Interestingly enough, under that treaty our Senate has to vote whenever a new country joins NATO, so when Trump complained about some insignificant countries being in NATO, why would we fight for them, the Senate proceeded to vote in 2019 by 91-2 to let North Macedonia join; Finland and Sweden joined NATO during the Biden presidency, in response to Russia’s invasion of Ukraine, and the U.S. senate voted 95-1 to admit them.). In the late 1970s, President Carter negotiated the Panama Canal treaty that as a good will measure to a developing nation gave the canal back to Panama by the year 2000; the Senate had some concerns, so Carter negotiated some reservations and understandings with Panama to get the treaty ratified (U.S. ships would have the right to go to the head of the line in an emergency, we had the right to use military force to keep the canal open if anyone threatened to close it). Secretary of State Hillary Clinton did a great job on the phone to Republican and Democratic senators to convince them to ratify a nuclear arms control agreement with Russia (New START) by a 71-26 margin. Obama’s next Secretary of State, John Kerry, did not even try to get his nuclear control treaty with Iran ratified by the Senate, fearing that Republicans would reject it; as such, a new President like Trump was able to kill its existence as a mere “executive agreement” of Obama's. President Biden and Russia renewed the New START treaty, which expires in 2026.

Presidential Powers. Under the constitution, I have 7 listed in my notes, so here goes:

1) The President is the chief executive, and “he shall take care that the laws are faithfully executed.” Congress passes the laws, and the President must enforce them. Nixon violated this oath of office by committing obstruction of justice, so he resigned. A burning question is whether recent presidents like Obama, Trump, and Biden have violated their oaths by issuing Executive Orders that are inconsistent with specific federal laws. Trump issued many orders seeking to restrict illegal and legal immigration, for example. One problem is that Congress often passes vague legislation, and depends on the executive branch to be more specific in enforcing the law.

2) The President “may require the opinion of the principal officer in each of the executive departments upon any subject relating to their duties.” That is interpreted to mean that the President is the head of the executive branch; he nominates heads of federal departments, and he can direct their actions. A gray area is what about the FBI and Justice Department? Trump and some legal scholars have argued that the President can actually terminate federal investigations (such as into possible Russian collusion with a presidential campaign), but remember that Congress makes the appropriations (funds) to federal agencies. If they lost confidence in any executive branch agency, they could cut its budget. Indeed, some liberals have lost confidence in the border patrol, and would like to de-fund it.

3) The President has the power to grant pardons for federal offenses, except in the case of impeachment. When Nixon violated the federal law on obstruction of justice, his successor President Ford pardoned him for any federal crime he may have committed as President. But, remember we are talking about the federal government, and federal crimes. States have their own constitutions, and most crimes are defined by state law. If the President violates a state law, he could only be pardoned by the governor of that state (state constitutions typically give their chief executives that power over state laws). Trump so angered liberal Democrats that state attorney generals in New York and Georgia indicted him for allegedly violating their state laws (those indictments were dismissed after Trump won reelection). Can a President be indicted for a federal crime while he is President? Some Trump haters said he could, but under Nixon it was believed that a President could not be. However, after a President leaves office, he becomes a private citizen, and he can be indicted. So, Congress can impeach and remove the President, and then a federal prosecutor can indict him. Oddly enough, the U.S. Supreme Court during the Clinton years held that a President can be sued in a civil lawsuit, so Clinton was forced to give testimony regarding a sexual harassment lawsuit occurring while he was governor (the court held that giving private testimony would not take up so much time that it would interfere with his duties as President). However, Clinton lied under oath. Though he was acquitted of impeachment, before leaving the Presidency he did agree to a plea bargain whereby he surrendered his law license for a few years. Can a President pardon himself of a federal crime before he leaves office? We think that he can, but none have tried to do this. Both Presidents Biden and Trump have been accused of violating the spirit of the pardon power, with Biden preemptively pardoning (before indictments) his son Hunter and some political allies of alleged federal crimes, and Trump mass pardoning over one thousand of his supporters convicted of storming the Capitol on January 6, 2021; perhaps Congress should attempt to pass a law limiting the pardon power to specific cases of convicted individuals.

4) President has foreign affairs powers, such as to “receive ambassadors” (other countries’ representatives to our nation). This is the power of diplomatic recognition; we recognize that that government is the legitimate government of that nation. After the communists took over mainland China in 1949, the U.S. government kept diplomatic recognition of the non-communist Chinese who had fled to the island of Taiwan and rejected communist China’s official representative. President Nixon visited China, but it wasn’t until President Carter in the late 1970s that the U.S. government officially recognized the communist Chinese government as the official, legitimate government of China. So what happened to the pro-American, non-communist Taiwanese? Well, the essence of politics is compromise. The U.S. government agreed that there is “one China, and that Taiwan is a part of China;” however, we maintain unofficial ties with Taiwan, and we sell them arms so that mainland China will not invade them. This is why the Chinese government is enraged when the U.S. sells arms to Taiwan or when its officials visit Taiwan; they feel that we are violating this one China policy; also, some Taiwanese (including their leader) seek independence from China. Since the Islamic government of Iran seized American diplomats as hostages in 1979 in protest of our support for the deposed leader, the Shah, the U.S. has not had diplomatic relations with Iran (it maintains a virtual embassy from Switzerland).

5) The President is Commander in chief of the army and navy, when they are “called into the service of the U.S.” So, we have civilian control of our military; we have never had a military governmental dictatorship. Occasionally, a pompous general like Doug MacArthur or George Patton will get arrogant and publicly criticize the President’s foreign and defense policy, and guess what happens to them? The President fires them. In the nationwide protests and riots over racial injustices, President Trump threatened to use the military to quell the rebellions if the state governors and mayors refused to take tough actions, but did not do so; in 2025, Trump did send the military into California to protect ICE officials and facilities. During the January 6 insurrection, an angry President Trump did nothing for three hours as rioters occupied the Capital, and Vice President Pence was the one who called in the national guard. Interesting world we live in!

6) The President shall from time to time deliver a State of the Union address, recommending to Congress legislation that he deems necessary. This has evolved into an annual address to a joint session of Congress meeting in the large House chambers. In recent decades partisanship has been so great that you can watch how Democrats and Republicans seated separately react; Trump would say something, and Republicans would stand up and vigorously applaud; Democrats would sit on their hands. The presiding officers sit behind the President, and you could see Vice President Pence (constitution, he presided over the Senate in Trump’s first term) standing and applauding, while House Speaker Nancy Pelosi (a Democrat, since Democrats controlled the House by outnumbering Republicans after Trump’s first midterm election) smirked. Indeed, in a one State of the Union address, at its conclusion she tore up a printed copy of his address. Relations between the parties were so bad in one year that Speaker Pelosi delayed by a few weeks Trump’s address (by withdrawing her official invitation to him to use the House chambers), prompting Trump to strand Pelosi at the airport (he withdrew her use of a military plane to fly abroad). The smartest thing for a President to do is to have genuine American heroes sitting in the galleries, whom he can introduce. Reagan started this practice, by introducing a private citizen who had jumped into the Potomac trying to rescue people from a downed plane. Congress members of both parties stand, and vigorously applaud and cheer such people. Today, the one group that is guaranteed such universal applause is our military, so the President will typically praise them in his speech (oddly enough, Biden’s last address neglected to do this, as it was a very partisan, campaign-oriented speech).

The Presidential Veto power. Typically, if Congress does its job and comes up with wise legislation that benefits our country the President will just sign the bill. If it is important, he will have a public ceremony in the Rose Garden of the White House, and invite the congress members of both parties who worked hard on the bill. He will sign his name, using a different pen for each letter of his name, and then give those pens to the Congress members. Unfortunately, partisanship has become so great that President Trump seemed to invite only Republican congress members to attend his signing ceremonies. If the President strongly disagrees with a bill, the President will veto that bill, and send a written message to Congress saying why he vetoed it. Congress can try to override his veto, or they could pass a new bill that took into account his concerns. It’s hard to override, as each chamber votes separately, and each needs a two-thirds vote. But again, if the chief executive is being unreasonable and Congress works in a bipartisan fashion, they can get the votes. In Mississippi, the state legislature successfully overrode two governors to pass major legislation to four lane one thousand miles of roads in 1987, and increased taxes to help public education and the universities in 1992 (plus build our nice university library). A President may slightly disagree with a bill, but he doesn’t feel strongly enough to veto it, so he can just refuse to sign the bill, and it becomes law without his signature after 10 days. The only time that a bill will die without his signature is if Congress adjourns within that 10-day period (this is a pocket veto). Nixon used the pocket veto if he didn’t want to publicly say why he opposed a bill. Legislatures typically will “officially” wait to adjourn by keeping one member in town during this period.

The Vice Presidency, under the constitution has two powers. Though he is the President of the Senate, he votes only if there is a tie (There is seldom a tie, though in recent years of a bitterly-divided Senate Kamala Harris had to vote 33 times to break a tie, and J.D. Vance broke ties over a budget cut rescission measure.). So typically, he isn’t even around to preside over Senate debate. The Vice President does become President, if the President leaves office. This process has been clarified under the 25^th amendment adopted in the 1960s after Eisenhower had had a heart attack and after Kennedy had been assassinated (and his successor Johnson went a year without a Vice President). That amendment states that when there is a Vice Presidential vacancy, the President will nominate someone as Vice President, and that nomination must be confirmed by a majority of the House and the Senate, voting separately. This amendment was used during the Nixon presidency. First, his Vice President resigned, after pleading no contest to taking a bribe while governor of Maryland. Under a federal presidential succession law, it goes as follows: after the Vice President comes the Speaker of the House, then the President Pro Tem of the Senate, then the Secretary of State. The House Speaker was a Democrat, and Democrats controlled the Congress. They could have been very partisan and nasty, and sought the Presidency by denying Nixon’s nomination, but Nixon was smart, and came up with the likeable, humble House Republican leader from Michigan Gerald Ford, who was confirmed. Nixon resigned, so Ford became our first and only “unelected” President. He then nominated respected and progressive Republican (back when both parties were not so ideologically distinct) governor of New York, Nelson Rockefeller, as Vice President, who was also confirmed. Another section of the 25^th amendment provides for an Acting President, if the President is not able to discharge his duties. That takes care of the Woodrow Wilson case, who had a stroke late in his term. Presidents like Bush have “officially” invoked this clause if they were under anesthesia for a minor medical operation. What if a President can’t really discharge his duties, but he thinks that he can? The last section of this amendment says that the Vice President and a majority of the heads of the executive branch can notify Congress that it has voted to make the Vice President Acting President. If the President disagrees with this action, then Congress must make the final decision; but it takes a two-thirds vote of each chamber to prevent the President from keeping his power. This has never been invoked, but there were rumors about maybe doing this after Trump fired the FBI Director James Comey. Also, during the January 6, 2021 insurrection, Vice President Pence independently asserted the Presidential power to protect the Capital, according to the Chairman of the Joint Chiefs of Staff. In 2025, the Republican-controlled Congress investigated former President Biden’s declining mental state in his last year in office.

The Supreme Court. Well, it is the third article in the federal constitution, so the Founders kind of expected it to be the least important body. Plus, it’s not my area of expertise, so if you are interested in it I suggest taking Professor Whit Waide, who has a law degree, he’s dynamic, the students love him, he directs and teaches our pre-law courses. Plus, we will cover this subject late in the course. Briefly, the federal constitution just says that there will be one Supreme Court, its judges serve for life, and Congress can create lower federal courts. The Supreme Court has jurisdiction over federal laws, the federal constitution’s interpretation, and treaties. Congress over the last hundred years has settled on having 9 Supreme Court judges, and has beaten back efforts to increase its size to satisfy a President’s agenda (FDR failed to increase its size to 15; he would have nominated the additional 6 judges, and his party controlling the Senate would have confirmed them; that attempt was too much even for the Democrats at that time, particularly more conservative southern Democrats.).

Congress by law quickly created lower federal courts- the federal district courts (trial courts), and the federal courts of appeals. As such, the Supreme Court typically just hears cases on appeal from the federal appeals courts (and from state courts if they involve these federal issues).

Constitutional Amendment process. Well, it’s easier to amend the constitution than the unanimous Confederate constitution required, but it’s not too easy. It is also a two-stage process with the federal government and the states involved. The usual process is that a constitutional amendment will be proposed by Congress, and must then be ratified by the states. It requires a two-thirds vote in each chamber of Congress, and then a three-fourths vote of the states (their state legislatures, typically). An alternate method of ratification lets Congress call for special state conventions to be held to consider ratification, but it was used only once to repeal prohibition; why use this separate body when you have existing state legislatures (maybe Congress thinks that the legislatures do not reflect the people’s will on this one issue). An alternative method of proposing amendments has never been used. If Congress refuses to propose a popular amendment, then two-thirds of the states’ legislatures can call for a national constitutional convention to consider a specific issue. Never been used, why would Congress oppose a popular amendment; typically, when states start calling for a particular amendment, Congress will just pass it themselves. Also, a little scary. When did we last have a constitutional convention? The Philadelphia convention, called to consider revising the existing constitution, it ended up throwing it out, and writing a completely new constitution. Today, the federal government keeps failing to balance the federal budget and keeps going into debt, so some Republican officials would like to see a balanced federal budget amendment.

The Bill of Rights. We’ll talk more about them later in the course. Many Americans in 1788 feared that the new federal government would be too powerful and would trample on their rights, so after it was ratified Congress quickly adopted these first ten amendments to protect people from the federal government. Under the 14^th amendment due process clause pertaining to the states, these amendments also apply to the states. Some of the key ones:

1^st amendment- free speech, free press, freedom of assembly and petition government. Religious protections- government cannot “establish” religion, or prohibit its “free exercise”. Class discussion- do you feel completely free to say whatever you wish? In the 1950s some liberals were accused of being “communists” if they opposed our foreign policy. Today, some people lose their jobs if they are “politically incorrect.”

Religion- what do you think about state and local governments shutting down church services during Easter during the pandemic? What about some localities even preventing people from staying in their cars with their windows rolled up in the church parking lots?

What about people protesting the police shootings of African Americans? Obviously, people have that right, as long as they don’t commit crimes like property damage. What do you think about Trump supporters walking into the restricted area of the Capital to protest the counting of the electoral votes that made Biden officially President, and even committing property damage and threatening the Capitol police? Or people protesting ICE immigration enforcement actions across the country, sometimes throwing things at police or damaging property?

2^nd amendment- right to bear arms. What do you think that that means? Can you own a machine gun, or a semi-automatic rifle? Is there a need for more gun control laws to try to stop mass shootings?

4^th amendment- right to be secure against “unreasonable” searches and seizures. After 9-11, a federal law permitted the government to spy on its own citizens if they had contact with suspect foreigners, but they had to get a warrant from a special court. The Justice Department spied on Trump’s incoming National Security Advisor Michael Flynn as he had contacts with the Russian ambassador. Even though he was a former General with combat medals, he may have been rattled by being interviewed by the FBI, so he may have misled them about those conversations. He ended up pleading guilty to lying to the FBI, but then retracted that guilty plea. The Justice Department recently said that they had made over a dozen errors in the application for their search warrant. What a mess!!

Another area of emerging privacy concern is your cell phones, which can track your locations. Do you really feel safe from governmental surveillance, including that of public universities?

5^th amendment- right against self-incrimination, prohibition of double jeopardy. Government can’t force you to testify against yourself, but watch out for federal investigators. FBI Director Comey’s book makes clear that every year thousands of people are convicted for “misleading” or “lying” to federal investigators. I used to think that only perjury could get you jailed, since you do swear to tell the truth on a Bible, but you can also go to jail for your conversations with federal investigators. Comey admitted that this was often a “low lying fruit”, that like in the Martha Stewart case, the feds couldn’t prove that she had broken the specific federal law (insider trading), so they went after any untruthful statement she made to investigators. That’s one reason I think that Trump refused to talk in person with the Special Counsel; he just answered questions in writing. Double jeopardy, prosecutors like to take their time to build their case, since they only get one shot at the defendant. If you are found not guilty unanimously by the jury, you cannot be tried again. If it is a hung jury (divided), you can be retried. However, remember that we have different levels of government. The same criminal act could result in prosecution for two different crimes at two different levels. So, a cop might be found not guilty of first-degree murder as defined by state law, but the feds could indict him and he could be found guilty of a federal hate crime or of interfering with a person’s civil rights.

6^th amendment- you have the right of counsel in criminal cases where you could go to prison, and if you can’t afford one a lawyer will be appointed to defend you.

8^th amendment prohibits cruel and unusual punishment, which the Supreme Court today interprets to mean that only in cases of first-degree murder can you get the death penalty.

Well, we are already a week behind, but that is fine, since these are the most important subjects of the entire course. You’ve already gotten your money’s worth. Now we can kind of coast, and talk about more fun things!