1. US Constitution
Chapter 2

2. Constitution = supreme law of the United States
Flag burning example:
Supreme Court of the United States (“SCOTUS”): Texas v. Johnson: flag burning is protected First Amendment activity
Congress: Flag Protection Act
SCOTUS: overrules FPA in US v. Eichman (FPA is impermissible infringement upon free speech)
Constitution = supreme law of the United States

3. Decentralized power Checks and balances
Stalemate vs. protection of minority views?
Issues:
What does democracy mean if majority doesn’t always get its way?
Should limits on scope of governmental action sometimes prevent the action that the majority desires?
Decentralized power

4. “A nation’s basic law. It creates political institutions, assigns or divides powers in government, and often provides certain guarantees to citizens. Constitutions can be either written or unwritten [e.g., Great Britain].” -- p. 32, textbook
What is a constitution?

5. Origins of the US Constitution
Passage of Declaration of Independence – treasonous act
18th century colonies: Britain controlled foreign policy & trade; colonists had discretion as to other matters
Britain increases taxation of colonies after it acquires large tracts of land as a result of the French & Indian War
Colonists lack direct representation in British Parliament
Colonists protest (e.g., Boston Tea Party); Britain reacts (e.g., blockade of Boston Harbor)
Origins of the US Constitution

6. Continental Congress: Philadelphia, 1775-76
Thomas Jefferson (VA)
John Adams (MA)
Benjamin Franklin (PA)
Roger Sherman (CT)
Robert Livingston (NY)
Declaration of Independence: Jefferson
Continental Congress: Philadelphia,

7. Declaration of Independence, 1776
Polemic – political argument
Majority of D of I lists ways in which King George III abused the colonies (Colonists contended that only the King – not Parliament – had authority over them)
Written to garner foreign financial assistance (France)
Rooted in John Locke’s political philosophy
natural rights inherent in humans – such rights not dependent upon govt. – life, liberty, property
consent of the governed
limited government
Declaration of Independence, 1776

8. Locke’s proposed limitations on gov’t
Governments must provide standing laws – advance notice to governed of what constitutes legal/unlawful actions
Government cannot take one’s property without one’s consent
Locke’s proposed limitations on gov’t

9. Declaration of Independence
People should have primacy over governments; people should rule instead of be ruled
Each person created equal and endowed with inalienable rights
Consent of the governed, not divine rights nor tradition, makes the exercise of political power legitimate
Declaration of Independence

10. American Revolutionary period
Am. Rev. was essentially a conservative movement: did not drastically alter colonists’ existing ways of life
Goal was to restore the rights colonists believed that they inherently possessed – no taxation with representation, protection of private property
American Revolutionary period

11. Articles of Confederation, 1776
First constitution created by committee established by Continental Congress
Established state-dominated national government
“league of friendship and perpetual union” among the 13 states
One house national legislature; 2-7 delegates per state; one vote per state
No national executive; no national court system
Fear of centralized government
Articles of Confederation, 1776

12. Articles of Confederation
Ratification required by ALL states, so not adopted until 1781 (Maryland last state to ratify)
Problematic from the start:
Congress had no power to tax
Value of currency declined, became almost worthless
No power to regulate commerce, which inhibited foreign trade and the development of a national economy
Articles of Confederation

13. State laws/constitutions between 1776-1787
Many states adopted bills of rights (which at that time applied only to white males):
Abolished religious qualifications for holding office
Liberalized voting requirement
Resulted in beginnings of middle class (farmers, artisans become majority of populace)
State constitutions concentrated powers in state legislatures – limited or non-existent state executives
State laws/constitutions between

14. Economic Turmoil: post-Am. Rev. period
James Madison: Federalist # 10: Factions (special interests) arise from various and unequal divisions of property
Post-war Depression: Economic issues become primary political agenda
States attempt to assist small farmers
Economic Turmoil: post-Am. Rev. period

15. Shays leads series of armed attacks on courthouses to prevent judicial foreclosures (MA). Similar protests in other states
Neither Congress nor state militia able to control Shays’ group (elites eventually fund private militia to quell the uprising)
Shays’ Rebellion

16. Calls for changes to A of C
1786: meeting in MD to discuss problems with A of C – only 5 states send representatives (NY, NJ, DE, PA, VA)
Results in petition to Continental Congress to convene Constitutional Convention
Constitutional Convention set for Philadelphia, May 1787
Calls for changes to A of C

17. Constitutional Convention, 1787
Twelve states send delegates (RI – hold out)
Original purposes: amend Articles of Confederation
Group of 55 elite white males convene:
Mostly wealthy planters
Successful lawyers, merchants
Independently wealthy
Educated
Constitutional Convention, 1787

18. Constitutional Convention
Areas of agreement:
Human nature
Causes of political conflict
Objects of government
Nature of republican government
Constitutional Convention

19. Const. Convention: Human Nature
Thomas Hobbes, Leviathan (1651)
Strong govt. necessary to restrain human’s “bestial tendencies”
Delegates maintained cynical view of human nature: people as self-interested
Even diametrically-opposed Franklin and Hamilton agreed upon this
“Men love power.” -- Alexander Hamilton
Const. Convention: Human Nature

20. Const. Convention: Political Conflict
James Madison: the distribution of wealth is the source of political conflict
Other sources of conflict:
Religion
Views of governing
Attachment to various leaders
Factions (parties, interest groups) arise in response to these source of conflict
If left unchecked, factions will ultimately tyrannize each other
Const. Convention: Political Conflict

21. Const. Conventions: Objects of Government
Gov. Morris (PA): preservation of property should be government’s principle purpose
Lockean theorist
Delegates were all property owners themselves
Government based upon economics: preservation of individual rights to acquire and to hold personal wealth
Const. Conventions: Objects of Government

22. Const. Convention: Nature of Government
Tried to ensure that no one faction would overwhelm the others
“Balanced” (limited) government: so long as no one faction may seize the whole of the government at once, tyranny can be avoided
Checks and balances; separation of powers
Const. Convention: Nature of Government

23. Const. Convention Three overarching issues in crafting national govt.:
Whether the states were to be equally represented
What to do about slavery
Whether to ensure equality in voting
Const. Convention

24. Equality & representation of the states
New Jersey Plan: states have equal representation
Virginia plan: population-based representation
CT compromise: Roger Sherman, William Johnson
Senate: two members from each state
House: population-based representation
Results in citizens in less populous states having greater say in Senate-related issues (treaty ratification, confirm nominees, impeachment trials) and in choosing president if no majority in Electoral College (House of Representatives)
Equality & representation of the states

25. Discussions of Slavery at Constitutional Conv.
1787: Slavery legal everywhere but MA, but concentrated in South
Delegates agreed Congress could limit future importing of slaves; did not forbid institution of slavery
Slavery referred to in Constitution: persons legally “held to service of labour” who escaped to free states must be returned
Discussions of Slavery at Constitutional Conv.

26. Three-Fifths Compromise
Constitution provided that representation in Congress and taxation were to be based upon the total number of free persons, plus three-fifths of the number of “all other persons.”
Three-Fifths Compromise

27. Framers allowed state election laws to determine who could vote nationally. People qualified to vote in state elections could also vote in national elections.
(Universal suffrage for all free adult males is “too democratic” following events such as Shays’ Rebellion.)
Equality in voting

28. Economic Issues Federalists: Anti-Federalists:
Advocates of Constitution
Wanted strong, centralized government
Stressed economy’s weaknesses
Anti-Federalists:
Opposed to Constitution
Feared strong, centralized government
Claimed that arguments regarding weaknesses of economy were exaggerated
Economic Issues

29. Economic issues Framers sought to address the following:
States’ imposing tariffs on products from other states
Virtual worthlessness of paper money in many states
Congress’s troubles in raising money
Economic issues

30. Framers’ economic backgrounds
Framers were primarily financially well-off, and all had interest in ensuring that economics was large focus of Constitution
Some were aspiring capitalists
Some were creditors whose loans were being wiped out by deflated paper money values
Many were merchants who could not properly conduct trade with other states
Framers’ economic backgrounds

31. Economic provisions of US Constitution
Congress to be chief economic policymaker
Congress could obtain revenues via taxation and via borrowing
Congress could appropriate funds
Congress could construct post offices, roads, establish weights and measures (infrastructure)
Congress could protect property rights (punish counterfeiters and pirates, issue patents and copyrights, legislate rules for bankruptcies)
Regulation of interstate and foreign commerce
Economic provisions of US Constitution

32. Prohibition on state practices that inhibited economic development:
Prohibited state monetary policies, duties on imports from other states, interferences with lawfully-contracted debts
States required to recognize and enforce each other’s civil judgments and contracts
States to return runaway slaves to “owners” in other states
Constitution required national govt. to repay all public debts incurred under Continental Congress & A of C -- $54 million
Encouraged growth of capitalism
Other economic issues

33. Dispersal of power among the branches of government and between state and national government
Most delegates thought states were adequately protecting individual rights, so Constitution says little about protecting rights
Individual Rights

34. Prohibits suspension of writ of habeas corpus, except during times of invasion or rebellion. Under writ of habeas corpus, jailers must explain to judge why they are holding a prisoner in custody/detention (Art. I, § 9)
Prohibits Congress and states from passing bills of attainder (punishing people without a trial) (Art. I, § 9)
Prohibits ex post facto laws (punishing people or increasing penalties for act that were not illegal or not as punishable when act was committed) (Art. I, § 9)
Individual Rights

35. Prohibits imposition of religious qualifications for holding office in national government (Art. VI)
Defines treason (Art. III, § 3)
Requires right to trial by jury in criminal cases (Art. III, § 2)
Individual Rights

36. Criticisms of Const. re: individual rights’
Original Constitution does not protect free speech, does not grant full rights of accused
Criticisms of Const. re: individual rights’

37. Madisonian Model James Madison: “Father of the Constitution”
Feared all factions, but especially majority’s potential to oppress minority
Place as much of government as possible beyond direct control of majority
Separate powers of different institutions
Construct system of checks and balances
Madisonian Model

38. Place only one element of govt, House of Representatives, within direct control of votes of majority
State legislatures to elect senators, who served for six years, with only 1/3 elected every two years
Special electors to elect president
President to nominate federal judges, who served for life
Shared powers: judicial, legislative, and executive branches
Madison’s plan

39. Checks & balances President checks Congress by holding veto power
Congress holds purse strings, approves presidential nominees
President nominates judges but Senate must confirm
Judicial branch: power of judicial review (deciding constitutionality of legislation, orders)
Marbury v. Madison (1803)
Not explicit in the Constitution
Checks & balances

40. Powers divided between federal and state/local governments
Framers anticipated that state/local involvement would “check” national government
Federal system

41. Constitutional Republic
Republic: system based on the consent of the governed, in which the representatives of the public exercise power
Results in incremental, if any, change
Encourages moderation and compromise
Difficult for majority or minority to tyrannize
Upholds property rights and personal freedoms
Constitutional Republic

42. Ratification Constitution required ratification by 9/13 states
Federalists (supporters) v. Anti-Federalists (opponents)
Federalists specified that ratification be by special conventions in each state (not by state legislatures)
Delaware first to ratify (1787);
Ratification

43. James Madison, Alexander Hamilton, John Jay (“Publius”): The Federalist Papers (total of 85)
Advocated for strong national government, weaker state governments; indirect election of officials; longer terms; government by the elite; expected few violations of individual liberties
Federalists

44. Anti-Federalists Believed new government was enemy of freedom
Argued that Constitution was class-based document intended to protect economic elite
Concerned about potential for erosion of personal liberties (e.g., freedom of press not addressed)
Advocated for strong state governments, weak national government; direct election of officials; shorter terms; rule by the common people; strengthened protections for individual liberties
Anti-Federalists

45. Anti-Federalists’ arguments about lack of protection for individual rights resulted in Federalists agreeing to add amendments to preserve individual liberties
Bill of Rights: First Ten Amendments to Constitution (1789)
Bill of Rights

46. Unanimously elected first POTUS; took office on April 30, 1789 in New York City
George Washington

47. Constitutional Change
“Living document:” Constitution is constantly being tested and altered
Formal amendments: provided for in Art. V
Proposal: either by 2/3 vote in each house of Congress or by national convention called by Congress at request of 2/3 of state legislatures
Ratification: either by legislatures of ¾ of states or by special state conventions called in ¾ of states
Difficult to amend
Constitutional Change

48. Expansion of liberty and equality in the US
Effect of Amendments

49. Informal process of Constitutional change
Judicial interpretation
Political practice
As a result of changes in technology
As a result in changes in the demands upon policymakers
Informal process of Constitutional change

50. Judicial Interpretation
Marbury v. Madison (1803): SCOTUS, under Chief Justice John Marshall, claims for the courts the power of judicial review – to declare whether acts of Congress and the President/executive branch are constitutional
Judicial Interpretation

51. Changing Political Practice
Political parties (arose by 1800)
Electoral College
Constitution doesn’t require electors to vote for any particular candidate but most vote in accordance with majority of voters in state’s general election
Changing Political Practice

52. Mass media: question governmental policies, support candidates, help shape citizens’ opinions
Media plays a role now that would have been unimaginable in the 18th century
Growth of bureaucracy in technological age
Electronic communications, development of atomic weapons enhanced POTUS’s role as commander in chief
Technology

53. Growth of Power of Presidency
Power of Presidency has grown as a result of increased demands for new policies
United States becoming a superpower in international affairs
National security concerns result in more power to POTUS
Increased demands of domestic policy place POTUS in more prominent role in preparing federal budget and in proposing legislative program
Growth of Power of Presidency

54. Importance of Flexibility
US has the oldest functioning constitution in existence
Framers created a flexible system of government that could adapt to needs of times without sacrificing personal freedom
Even with 27 amendments, Constitution is very short document (not extremely detailed)
Importance of Flexibility

55. Understanding the Constitution
Review:
Democratic government was despised and feared among eighteenth century upper-class society
Constitution created a republic, a representative form of government modeled after the Lockean tradition of limited government
One of the central themes of US history is the gradual democratization of the Constitution, away from the elitist model of democracy and toward the pluralist model
Understanding the Constitution

56. Constitution and scope of government
Separation of powers, checks and balances allow almost all groups some place in the political system where their demands for public policy may be heard
Separation of powers, checks and balances also promote politics of bargaining, compromise, playing one institution against another, and increase of hyperpluralism
Some scholars suggest that so much “checking” was built in to system that effective government is nearly impossible (gridlock)
Outcome may be non-decisions
Constitution and scope of government