Many FCLE questions describe a situation and ask which constitutional principle it shows. Memorizing definitions is not enough; you have to recognize the principle in action. This lesson covers the 8 principles the exam uses most, with clue words and worked scenarios.
How to answer a scenario question
Read the scenario and underline who acts and on whom: two branches, a state and the nation, the people, or the government and a person.
Two branches of the same government: think separation of powers or checks and balances. If one branch is stopping or approving another, it is checks and balances.
A state and the national government: think federalism (reserved, delegated, concurrent powers; the Supremacy Clause).
A court deciding whether something is constitutional: judicial review.
The people choosing or changing government: popular sovereignty.
A leader held to the law: rule of law. Government lacking the power to act at all: limited government.
Government against one person's freedom: individual rights. Then name the specific clause or amendment.
Definition: The people are the source of government's power. Government exists by the consent of the governed, and the people can change it.
Where it shows up:
The Preamble opens "We the People of the United States" and says the people "ordain and establish this Constitution."
Elections of the House (Article I), and since the 17th Amendment (1913), the Senate.
Article V lets the people's representatives amend the Constitution.
The Declaration of Independence: governments derive "their just powers from the consent of the governed."
Clue words in a question:voters decideconsent of the governedWe the Peoplea referendum or ballot measureratification by the people's conventions
Try it (scenarios):
Florida voters approve a state constitutional amendment on the ballot.
Which principle?
Popular sovereignty: the people directly change their government.
The Constitution was sent to state ratifying conventions elected by the people rather than to state legislatures.
Which principle?
Popular sovereignty: the authority of the Constitution rests on the people.
A town holds a meeting where residents vote on the local budget.
Which principle?
Popular sovereignty in its most direct form (direct democracy).
Presidents on this principle:
The basis of our political systems is the right of the people to make and to alter their constitutions of government.George Washington, Farewell Address (September 19, 1796)
We are all Republicans, we are all Federalists.Thomas Jefferson, First Inaugural Address (March 4, 1801)
Commonly confused: Popular sovereignty (the people are the source of power) vs. Majority rule (the larger number decides)
Majority rule is a method of deciding; popular sovereignty is the reason the people get to decide at all.
Definition: Government has only the powers the people give it, and those powers are written down and restricted. Government cannot do whatever it wants.
Where it shows up:
Article I, Section 8 lists (enumerates) Congress's powers; Article I, Section 9 lists things Congress may not do.
The Bill of Rights begins "Congress shall make no law..."
The 10th Amendment reserves powers not delegated to the national government to the states or the people.
Clue words in a question:shall make no lawenumerated powersa written constitutionthe government lacked the powera list of prohibitions
Try it (scenarios):
A court rules that Congress cannot pass a law because no clause of the Constitution gives it that power.
Which principle?
Limited government (enumerated powers), enforced through judicial review.
The Constitution forbids Congress to pass ex post facto laws or grant titles of nobility.
Which principle?
Limited government: some actions are off-limits entirely.
Magna Carta forced King John to accept that he could not take property or imprison free men except by the law of the land.
Which principle?
An early root of limited government and the rule of law.
Presidents on this principle:
we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.Dwight D. Eisenhower, Farewell Address (January 17, 1961)
government is not the solution to our problem; government is the problem.Ronald Reagan, First Inaugural Address (January 20, 1981)
Commonly confused: Limited government (government's powers are restricted) vs. Rule of law (everyone, including officials, must obey the law)
Limited government is about how much power government has; rule of law is about whether leaders themselves are bound by the law.
Definition: Government's power is divided among three branches with different jobs: the legislative branch makes laws, the executive branch enforces them, and the judicial branch interprets them. The idea comes from Montesquieu.
Where it shows up:
Article I: "All legislative Powers herein granted shall be vested in a Congress."
Article II: "The executive Power shall be vested in a President."
Article III: "The judicial Power of the United States, shall be vested in one supreme Court."
Federalist No. 47: the accumulation of all powers in the same hands is "the very definition of tyranny."
Clue words in a question:each branch has its own jobvested inthree branchesMontesquieuno branch does another's job
Try it (scenarios):
A President tries to pass a new criminal law by executive order without Congress.
Which principle?
Violates separation of powers: making laws is Congress's job (compare Youngstown, 1952, the steel seizure case).
A member of Congress may not serve at the same time as a federal judge or cabinet secretary.
Which principle?
Separation of powers: Article I, Section 6 bars members of Congress from holding other federal offices.
Congress writes a tax law, the IRS collects it, and a federal court decides a dispute about it.
Which principle?
Separation of powers: each branch performs its own function.
Presidents on this principle:
I advise that the Congress declare the recent course of the Imperial German government to be in fact nothing less than war against the government and people of the United StatesWoodrow Wilson, Address to Congress Requesting a Declaration of War (April 2, 1917)
I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.Franklin D. Roosevelt, First Inaugural Address (March 4, 1933)
Commonly confused: Separation of powers (different jobs for each branch) vs. Checks and balances (each branch can limit the others)
Separation is about dividing the work; checks and balances are the tools each branch uses to stop another.
Definition: Each branch has tools to limit the other branches so that no one branch becomes too powerful.
Where it shows up:
The President can veto bills; Congress can override with two-thirds of both houses (Article I, Section 7).
The Senate confirms appointments and approves treaties by two-thirds (Article II, Section 2).
The House impeaches and the Senate tries impeachments (Article I).
Courts can strike down laws and executive actions (judicial review, Marbury v. Madison).
Federalist No. 51: "Ambition must be made to counteract ambition."
Clue words in a question:vetooverrideconfirmimpeachdeclare unconstitutionaltwo-thirdsone branch limits another
Try it (scenarios):
The Senate votes down a President's nominee for the Supreme Court.
Which principle?
Checks and balances: the legislative branch checks the executive's appointment power.
Congress overrides a presidential veto with a two-thirds vote in each house.
Which principle?
Checks and balances: the legislature checks the executive.
The Supreme Court rules that a law passed by Congress violates the Constitution.
Which principle?
Checks and balances through judicial review: the judiciary checks the legislature.
The President nominates a federal judge.
Which principle?
Checks and balances: the executive shapes the judiciary, subject to Senate confirmation.
Presidents on this principle:
The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modernGeorge Washington, Farewell Address (September 19, 1796)
The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.Andrew Jackson, Veto Message on the Bank of the United States (July 10, 1832)
Commonly confused: Checks and balances vs. Federalism
Checks and balances operate between branches of the same government; federalism divides power between the national government and the states.
Definition: Power is divided between the national government and the state governments. Some powers are national (delegated), some are kept by the states (reserved), and some are shared (concurrent).
Where it shows up:
Article I, Section 8 lists national powers; Article I, Section 10 limits the states.
The 10th Amendment reserves undelegated powers to the states or the people.
The Supremacy Clause (Article VI) makes valid federal law win conflicts.
Article IV covers how states treat each other (Full Faith and Credit, Privileges and Immunities).
Clue words in a question:national and statereserved powers10th Amendmentstates' rightsconcurrent powersthe federal government vs. a state
Try it (scenarios):
Florida sets its own requirements for a driver's license and for marriage licenses.
Which principle?
Federalism: reserved powers belong to the states.
Both the national government and Florida collect taxes and build roads.
Which principle?
Federalism: concurrent (shared) powers.
A state law conflicts with a valid federal law, and the court rules for the federal law.
Which principle?
Federalism and the Supremacy Clause: federal law wins.
Several western states let women vote before the 19th Amendment made it national.
Which principle?
Federalism: states can act as "laboratories of democracy" before national change.
Presidents on this principle:
A house divided against itself cannot stand.Abraham Lincoln, "House Divided" Speech (as a Senate candidate) (June 16, 1858)
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual.Abraham Lincoln, First Inaugural Address (March 4, 1861)
Commonly confused: Federalism (national vs. state power) vs. Separation of powers (three branches)
If the scenario names a state and the national government, think federalism. If it names two branches, think separation of powers or checks and balances.
Definition: The power of courts to decide whether a law or government action violates the Constitution and to refuse to enforce it if it does. It is not written in the Constitution; Marbury v. Madison (1803) established it.
Where it shows up:
Article III gives the judicial power over cases "arising under this Constitution."
Article VI makes the Constitution supreme law.
Federalist No. 78: "The interpretation of the laws is the proper and peculiar province of the courts."
Marbury v. Madison (1803): "It is emphatically the province and duty of the judicial department to say what the law is."
Clue words in a question:unconstitutionalstrike downMarbury v. Madisonthe courts decide what the Constitution means
Try it (scenarios):
A federal court rules that a city's ban on handguns in the home violates the 2nd Amendment.
Which principle?
Judicial review (compare Heller and McDonald).
The Supreme Court rules that a federal law exceeded the Commerce Clause (United States v. Lopez).
Which principle?
Judicial review limiting Congress.
President Eisenhower sent troops to Little Rock to enforce a court's desegregation order.
Which principle?
The executive enforcing the judiciary's rulings; Eisenhower said "Mob rule cannot be allowed to override the decisions of our courts."
Presidents on this principle:
the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulersAbraham Lincoln, First Inaugural Address (March 4, 1861)
the responsibility and authority of the Supreme Court to interpret the Constitution are very clear.Dwight D. Eisenhower, Address on the Situation in Little Rock (September 24, 1957)
Commonly confused: Judicial review (courts decide constitutionality) vs. Judicial independence (judges serve during good behavior and their pay cannot be cut)
Review is a power; independence is a protection that lets judges use that power freely.
Definition: Everyone, including government leaders, must obey the law, and laws are applied fairly and equally through known procedures. No one is above the law.
Where it shows up:
Due Process Clauses (5th and 14th Amendments).
The President's oath to "preserve, protect and defend the Constitution" and duty to "take Care that the Laws be faithfully executed" (Article II).
John Adams: a republic is "an Empire of Laws, and not of men."
United States v. Nixon (1974): the President had to turn over the Watergate tapes.
Clue words in a question:no one is above the laweven the Presidentfair, known proceduresequal applicationa government of laws and not of men
Try it (scenarios):
A President is ordered by the Supreme Court to turn over evidence in a criminal case and complies.
Which principle?
Rule of law (United States v. Nixon, 1974).
A governor is prosecuted for taking bribes in the same court system as any other person.
Which principle?
Rule of law: leaders are subject to the same laws.
Laws are published in advance so people know what is forbidden before they act.
Which principle?
Rule of law (and the reason the Constitution bans ex post facto laws).
Presidents on this principle:
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.George Washington, Farewell Address (September 19, 1796)
Plainly the central idea of secession is the essence of anarchy.Abraham Lincoln, First Inaugural Address (March 4, 1861)
Commonly confused: Rule of law vs. Popular sovereignty
Rule of law binds leaders to the law; popular sovereignty says the people are the source of power.
Definition: People have rights that government may not take away, even when a majority wants to. The Declaration calls them unalienable rights; the Bill of Rights and later amendments protect them.
Where it shows up:
The Bill of Rights (Amendments 1-10), especially the 1st, 4th, 5th, 6th, and 8th.
The 9th Amendment: listing some rights does not deny others the people keep.
The 14th Amendment's Due Process and Equal Protection Clauses, which apply most rights to the states.
Jefferson's First Inaugural: "the minority possess their equal rights, which equal law must protect."
Clue words in a question:unalienable rightsBill of Rightsfreedom ofthe right tominority rightseven if the majority wants
Try it (scenarios):
A student wears an armband to school to protest a war, and the Court protects the student (Tinker, 1969).
Which principle?
Individual rights: free speech, even in school.
Police must tell a suspect in custody that he has the right to remain silent (Miranda, 1966).
Which principle?
Individual rights of the accused.
A majority of a town's voters want to ban a small religious group's services, but a court says no.
Which principle?
Individual rights and minority rights limit majority rule.
Presidents on this principle:
though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.Thomas Jefferson, First Inaugural Address (March 4, 1801)
It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes.Andrew Jackson, Veto Message on the Bank of the United States (July 10, 1832)
Commonly confused: Individual rights vs. Majority rule
In American government, majority rule is limited by the rights of individuals and minorities.