The U.S. Constitution - Lesson #3: Implied v. Expressed Powers

Before we go any further into the Constitution it is important that we draw a clear distinction between two different types of powers in the Constitution:  Expressed powers and implied powers.  I will be drawing upon these two terms a lot in the future of this blog so its best they be defined and appropriate examples given.

Expressed powers, sometimes called enumerated, are the powers expressly given to a government.  The job of our Constitution is to enumerate those powers and also list out the powers denied to the government.  The power to tax and spend is one of the most obvious and well known enumerated power of any government on the face of the earth.

The vast majority of the expressed powers of Congress can be found in Article I, Section 8.  But there are more powers granted to Congress that you can find within the body of the Constitution and its amendments.  Often times when an amendment is added there is a clause that states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article (Amendment 14)."  This is just simply stating that Congress can write the laws to make sure this happens.  It adds to their expressed powers.  I will not go into detail right now all the expressed powers of Congress, the President or the Supreme Court now, but that will be a huge aspect of future lessons on our Constitution.

Implied powers related specifically to the Legislative Branch (law making, i.e Congress), though all branches of have some form of implied powers.  The authorization for implied powers of Congress can be found in Article I, Section 8, Clause 18.  It states:

To make all law which shall be necessary and proper to carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the United State, or in any department  or officer thereof.

Notice the language of this clause, it is very specific in how these implied power are to be enacted.  The laws passed by Congress under this clause must have their authority from the Constitution itself.  This is not the power to expand the power of Congress beyond what is in the Constitution.  This is the power to create laws to help them carry out the powers in this Constitution.  Here are a few examples.

Article I, Section 7 of the Constitution is the main part of the Constitution that deals with the legislative process of Congress.  If you read it none of the detail of how a law is passed are outlined in the clauses.  Only that both houses of Congress must concur with each other on any bill and that the President must sign said bill.  There is nothing in there about committees, subcommittees, conference committees, limits on debate, how a law will be introduced, or any other details.  Well those procedures were created out of the implied power of Congress.  To carry out the power of passing bills into laws the Congress need to pass rules explaining how to pass a law with which both houses concur.  This is also part of their procedural rules (Article I, Section 5, Clause 2) that they pass every two years.

Another big example I use most often with my students, is the postal powers given to Congress (Article I, Section 8, Clause 7).  The text reads as follows:  To establish Post Offices and Post Roads."  Congress and the government does over see the United States Postal Service, but its mostly left alone as a government corporation.  Technically under the implied powers of Congress this also means that Congress has the authority to regulate companies like FedEx, UPS, DHL, and other similar companies.  The reason being is that they carry post, or mail.  One could also reasonable imply that since almost roads in the United States carry post they also have the power to regulate these as well.  I will strech this example just a little bit further.  Since mail is often times also carried on airplanes then they have the authority, granted by this the implied power clause, to regulate air traffic as well.

This is also where the power of the military draft comes from; its an implied power of Congress to raise and maintain an Army and Navy.  

I hope those examples are enough for you to understand the differences between the expressed and implied powers in our U.S. Constitution.  These will be referenced a lot as we dive into the powers of the Constitution next week.  If you have any questions do not hesitate to email or comment on this blog or on Facebook (it gets posted there as well).

One last thing before I dismiss class.  I mentioned yesterday that I was thinking of moving my blog entirely to Facebook.  Please send me any thoughts you may have on the subject.

Questions?  Comments?  Concerns?  Well then... class dismissed.

My Perfect School: Teacher Evaluation

In today's posting I will address the subject of teacher evaluation at my perfect school.  This is in direct response to the article I posted earlier this week, when an incompetent CCSD teacher was not fired but moved to another school.  In my school district, as a post-probationary teacher, I am only evaluated once a year.  My supervisor only needs to observe me three times a year to make said evaluation.  Compared to several years ago when I was evaluated three times with over nine observations from my supervisor.  Here is my plan.

As stated in previous postings, my school would not have a central administration, with principles, deans and others.  There would be one person responsible for evaluating the teacher of that school.  That would be their job.  Using a predetermined rubric of standards the Evaluation Manager would observe teachers on a daily basis.  The goal would be for the Evaluation Manager to see each teacher AT LEAST once a grading period, but they would definately be observe them more than once.

The rubric used by the teacher would be something similar to this evaluation rubric (Click on the hypertext).  I found this several weeks ago and thought it was one of the most comprehensive evaluation rubric for teachers.  The only thing I would probably want to add to this rubric is an option for non-observed action or behavior.  not that they are deficient but this cannot be observed by the evaluator.  Here is the link if the hypertext does not work:
http://www.marshallmemo.com/articles/Kim%20Marshall%20Teacher%20Eval%20Rubrics%20May%2016,%2009.pdf

Now not everything on the evaluation rubric is observable in a classroom experience.  Prior to the end of the grading period, the Evaluation Manager and the teacher will sit down and have a discussion on the evaluation.  The goal would be for the manager to give the teacher all their notes, observations, and the rubrics prior to this final evaluation.  The teacher would then need to provide evidence of any areas lacking in the evaluation rubrics.  They would bring this to the meeting with the Evaluation Manager.

Also a part of the evaluation would include observations from other areas as well.  In my perfect school the Department Chair (DC) would be responsible for observing and evaluation each teacher within their department.  They would use the same rubric but included would be a section ability of the teacher on the course methods and content.  The DC is the best person to do this since they should know the material better than anyone else.  Teachers would also be observed and evaluated by a colleague.  They would be randomly assigned at the start of the year.  All of these observations and evaluations would also be given the the teacher so they could provide evidence of areas where they may be deficient or there was no observable evidence.  These would be included in the final evaluation reports.

Lastly two groups of would also be allowed to observe and evaluate the teacher: parents and students.  Too often schools do not listen to their parents and students about the teachers they hire.  I would make it a prioroity to get an evaluation of the teacher from both students and parents as a part of the teacher's evaluation.  Who knows the teacher's better than the students?  They should have a voice in their evaluation.  They observe them everyday, so their opinion should be consulted.  Parents complain the most about teacher; they may not know them as well as their students, but they have insight to them as well.  The school might send this out the last week or so of the grading period.  It could be completely anonymous with student ID as the only identifier.  The results could then be tabulated for that teacher.

All of these observations and evaluation, in the end the result would be a clearer picture of who this teacher is in the classroom.  This evaluation method will apply to hiring, firing and pay increases.  Though, I will leave those for postings for another day.  Thanks for listening.  Feel free to comment.  If the comment link is not available her go over to my facebook page to comment on this posting. 

Also, I may be abandoning this site for blogging.  Facebook has a blogging app that seems to be just as good as blogger.  Please email me your thoughts and comments on my moving my blog.  Have a nice day.

Public Policy: Campaign Finance Reforms

I am starting a new feature (added to the government Lessons, News of the Day and My Perfect School features) on my blog. I am titling this Public Policy because I will address an area of local or federal policy that should be implemented by those levels of government. Today I am drawing my focus on campaign finances. The topic for today is relevant because of the breaking news.

Today the U.S. Supreme Court ruled that part of the 2002 McCain-Fiengold Campaign finance law was unconstitutional. I will not get into the details of the law or the courts ruling. so you can read complete story at this link: http://www.nytimes.com/2010/01/22/us/politics/22scotus.html?hp

Campaign finance law is so long, complicated and full of loop holes its not even funny. The limits they place on individual and organizational campaign contributions are affront to the liberties of our Constitution; specifically, the first amendment. Giving money to campaigns can be interpreted as a form of political speech, therefore there should be no law abridging that form of speech.

There are issues that need to be dealt with under campaign finance but they are all able to be handled with provisions inside the Constitution. In Article I, Section 4 it states:

The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as the the places of choosing Senators.

With this clause the Congress has the expressed authority to write election laws which the states must follow. This would include laws governing campaign finances, which were first written following several controversial appointments in by President Nixon. Before that point there was very little regulation. In this day and age thought it should be vitally important that we know who is financing a person's campaign. In the end though, campaign finance law needs to be rewritten so that is simple and easy to understand. I can see possibly three major provisions in a campaign finance law.

First, every amount of money that is donated must be recorded by the receiver with the name of the person donating and a verifiable address for the person who donated the money. This is directly tied to the second major provision.

Secondly, no amount of money may be accepted from any foreign person, nation, and/or organization outside of the United States. Only U.S. citizens and organizations may be allowed to donate money to political campaigns. It would corrupt indeed if another country could donate money in an attempt to play a part or role in our elections. This provision is linked to the first because it provides for the enforcement of the previous provision. Any candidate who accepts money from one of these illegal contributors must pay the same amount of money to the federal government in the form of a fine.

Thirdly, only individuals may donate to any political campaigns. I am not really sure any more how I feel that corporation and other organization like Unions can give as much money as they want to a political campaign. If the money was raised specifically for the purpose of political action then there should be no problem, but when you have organizations taking money from dues or other sources to give to a political campaign, there is a danger of corruption. This is partially what the supreme court rule on today, removing the limits and restrictions corporations and other organization in donating to political campaigns.

Fourth, only people of a given state may give to any political campaign of that state. Meaning a citizen of California would not be allowed to donate to the campaign of a Massachusetts senator. Similar to what happened when churches and people from all over the country donated money to the Prop 8 campaign in California. It should be up the people of California, or whatever state, to decide that referendum. Money from outside the state could corrupt the results.

Those are the four major provisions that should be a part of any campaign finance law. The key to any legislation though is that it is easy to understand and easy to enforce; which these provisions meet I welcome all comments and questions on this post.

News of the Day - 1/20/2010: CCSD Teacher Moved

There were a few interesting stories today I could have commented on but a friend posted on story already on Facebook. I will instead use the story linked below since it has a bit of local flair and has an interesting focus on education. It even connects to "My Perfect School" posts. Here's the story:

http://www.lvrj.com/news/district-moves-gym-teacher-82143517.html

In brief, a gym teacher at a Clark County School District, high school denied that the Holocaust actually happened. Several students mentioned it to their parents. No disciplinary actions were taken until 23 days after the incident, and only after the Review Journal reported on the story. She is now teaching gym in a middle school.

The major issue here is allowing a teacher that is obviously guilty of gross incompetence to keep her job. First, she was talking about a topic she was not qualified by the state to teach. Now if she has done some reading on the topic that is great, but don't try and teach my students about a subject not necessary for the class. Secondly, to deny the Holocaust is to deny verifiable historical facts. I would expect to be fired if I said taught something like that.

The larger issue is the ways it is next to impossible to get rid of incompetent, lazy, or bad teachers in our public school systems. A teacher who is not a good teacher keeps getting a paycheck even though they are not doing actions required of them by the state, district or school. What's worse is the teacher's union protects these people. This is akin when the Catholic Church did nothing but move around priests who were known child molesters (Its not exactly the same but the concept is the same.).

This is the largest argument I can see for the elimination of tenure at any school. A teacher should not be protected just because they have been there a certain number of years. They need to be held just as accountable, if not more accountable as a new teacher to that school. Teachers need to be observed continuously and evaluated by more than one person. Students and parents need to be involved in this work because they know the teachers, their methods, and behaviors better than anyone else. They should also be involved because they are the consumers of our service.

Since the topic at hand boils down to teacher evaluation, it would be a good idea for me to do a blog posting on the subject of teacher evaluations in "My Perfect School." I will start working on that to post in the near future.

Comments?

News of the Day - 1/19/2010: Filibuster & Cloture Rules

There were a number of good articles I could comment on today but the following sound clip won out. Mostly because it deals with the specifics of how our government is run. Give a click on the link to hear from Rep. Barney Frank of Massachusetts and his take on the filibuster rule of the U.S. Senate. I will deal with his arguments point by point.

http://www.breitbart.tv/barney-frank-god-didnt-create-the-filibuster/

First, there is no constitutional issue with the filibuster and cloture rules. The Constitution states in Article I, Section 4, Clause w: "Each House may determine the Rules of its Proceedings..." It has been in the rules of the U.S. Senate for over two hundred years that the Senate shall be entitled to unlimited debate. When Rep. Frank suggests the Senate change the rules, he is correct in that the Senate can change its rules as it sees fit. The filibuster is totally supported by the founding fathers though, to get rid of it would be going against the original intent. Here is a story that explains the reasons behind a Senate and unlimited debate:

The “Senatorial saucer” conversation between George Washington and Thomas Jefferson is part of U.S. Senate legend. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate.

“Why,” said Washington, “did you just now pour that coffee into your saucer before drinking it?”

“To cool it,” said Jefferson; “my throat is not made of brass.”

“Even so,” said Washington, “we pour our legislation into the Senatorial saucer to cool it.”

(http://www.barrypopik.com/index.php/new_york_city/entry/the_senate_is_the_saucer_into_which_we_pour_legislation_to_cool/

Secondly, he makes the claim, and rightly so, that the smaller states usually are the states that usually help filibuster. Those who look at history and the Constitution will see that originally the Senators were not elected by the populace as a whole, but by the state legislatures. The reason behind this was the Senate was created to look out for the powers and rights of the individual states. Those smaller states fought for equal representation and got it in the Great Compromise.

Thirdly, he says that the filibuster is anti-democratic. The U.S. government though is not a true democracy, it is a republic; where the rights of the minority are protected by the Constitution. Any democratically majority can pass legislation very quickly, but that would lead the tyranny of the majority, whether it be Republican, Democrat, liberal, conservative and/or independent. The filibuster is there to protect the minority. Also it provide a check and balance against the House of Representatives.

The larger issue at stake here is changing good rules just because you don't like them. This happened in Massachusetts when Sen. Ted Kennedy died. Several years ago Sen. Kennedy asked the legislature to change the rules so that Republican governor Mitt Romney would not be able to appoint a Republican candidate for a temporary senate seat for his state. And just last year he suggested another change, so that a Democratic governor could appoint a temporary senator for his state.

Also the changes they are currently making to the reconciliation process of laws passed by Congress. The health care bills need to go into a conference committee as determined by the rules of legislation in the U.S. Code of Law, but the majority party will have nothing to do with it since it would require having a number of minority party members as part of the conversation. It would also require another cloture vote in the Senate; both parties have been guilty of this practice. All of these rule changes are completely legal, but they are highly unethical and/or immoral.

Comments?

News of the Day - 1/18/2010: Bible Verses on Guns

Almost decided to not post today since I was spending the day with my wife, but I found something interesting to comment on. Here is the story of the day:

http://abcnews.go.com/Blotter/us-military-weapons-inscribed-secret-jesus-bible-codes/story?id=9575794

So the basic gist of this article is the gun sights made by this one company have abbreviated bible verses printed on them. I will deal with each of the issues of this story a point at a time.

The first point they make is the fact that the U.S. military cannot proselytize any religion in Iraq or Afghanistan. The key facts is that they are not trying to spread any faith. The sights have scriptures written on them but that's not proselytizing. Its as harmless as a person handing out Bible tracts in the street. People can ignore them if they want or look them up if they want.

The second major points is that the verses were always a part of the sights. If the military did not know about it than they are neither liable, nor do they have a legal right to cancel the contract. If they wanted sights without bible verses they should have researched the company a little bit more.

Third points is the legal or constitutional issues. Michael Weinstein says it violated federal law. If he feels so strongly about it he should state the statue found in the U.S. Code of Law. There is no real constitutional issue. Even though the separation of church and state is not a constitutional doctrine there is nothing here that violates the first amendment. The use of these sights does not establish a church or religion, nor does it limit the free exercise of one's religion (Which are the only two constitutional issues related when it comes to freedom of religion). The government did not know about the scripture before hand so this is not a true establishment of any religion. To void the contract would be a true violation of the free exercise clause since the manufacturer has the right to practice its religion on its manufacturing process. In the future the U.S. government should check its products more carefully. It is also a drastic and insane step to say these are "pushing fundamentalist Christianity at the point of a gun."

Fourth point is the argument that the people we are fighting against think this is a Crusade against them since they have bible verses on the guns. Well the people we are fighting against do think their war is a Crusade against us and anyone who is not a follower of Islam. Secondly, this will not embolden the enemy, our way of life emboldens the enemy. The fact that we allow our women to drive and vote, emboldens the enemy. The fact that we have the freedom to speak what we want emboldens the enemy. Even if these gun sights did not have bible verses they would still hate us. Plus, these extremists are our enemies, who cares if we offend them.

Am I off base? Comments. Oh yeah... I LOVE MY WIFE!!!