2. CONFLICT AND COMPROMISE
and the Constitution

3. The Founding Document CONFLICT AND COMPROMISE Chapter Opener:
Understanding the Constitution is crucial for understanding the American political system.
The American politics system is bewildering and complex, and sometimes it is amazing that it actually works. Although it is regularly taken for granted or overlooked by most Americans, the Constitution is ever-present in our lives: It both supplies the ground rules for the process that guides politics and provides legitimate ways to solve political conflicts.
Our nation was founded through two very different conflicts: the Revolutionary War of 1776 and the Constitutional Convention of While the concept of war is all too familiar, the creation of the Constitution through a convention involved a new sort of politics characterized by peaceful (but not placid) debate and representative popular decision-making. This book characterizes contemporary affairs by attempting to show that Politics is Everywhere; Political Process Matters; and Politics is Conflictual. Was this always true in American politics or is it a contemporary development?
Studying the Framers and the creation of the Constitution reveals that these facets of politics are eternal and not a recent development.
Photo: © Wally McNamee/Corbis

4. The Power of Impeachment
CONFLICT AND COMPROMISE 2.1:
In this 1999 video image of closing arguments in President Clinton’s impeachment trial, Republican representative Bill McCollum said the president lied when he made this quote to the grand jury. The impeachment trial reminds us that there are multiple interpreters of the Constitution: While Americans generally disapproved of Clinton’s behavior with Lewinsky, public opinion did not support the Republicans’ impeachment push, which implied the public belief that the Constitutional power of impeachment should be used for political, not personal, conduct.
Photo: AP/Wide World Photos 4

5. Deciding Power CONFLICT AND COMPROMISE 2.2:
The 2000 presidential election resulted in an impassioned and bitter conflict. In this photo, taken hours after oral arguments in the presidential recount case, sparring Gore and Bush supporters invoked the Constitution outside of the Supreme Court in December While Democrats were disappointed that the essentially tied election was not called in their favor, Americans’ general faith in the Constitution legitimized the Supreme Court’s ruling.
Photo: AP Photo/The Free Lance-Star, Reza A. Marvashti 5

6. The Patriot Act CONFLICT AND COMPROMISE 2.3:
The framers of the Constitution could not have imagined the context and results of the September 11 attacks, but the Constitution’s guidelines for political process have remained vital. President Bush, seen here signing the USA PATRIOT and Terrorism Prevention Reauthorization Act in March 2006, named the power to create military tribunals and the power of expanded government surveillance as essential for fighting terrorism.
Photo: Mark Wilson/Getty Images 6

7. Checks and Balances CONFLICT AND COMPROMISE 2.4:
As fighting in Iraq and Afghanistan continued and news spread of the Bush administration’s controversial interrogation methods, domestic surveillance, and secret renditions, the public claimed that the executive branch had gone too far. Groups like CodePink, seen here during their “Restore the Constitution” parade in Washington in March 2008, began to call for a restoration of balance in the government. Again, we saw how the Constitution provides the process for resolving conflict when Congress and the Supreme Court used the Constitution’s system of checks and balances to challenge the president’s actions as unconstitutional.
Photo: Bill Clark/Roll Call/Getty Images 7

8. Why Did We Need a Constitution?
After declaring independence in 1776, and throughout the Revolutionary War, America’s first attempt at organizing a new American Government was the Articles of Confederation. In an effort to ensure that a foreign monarchy was not merely replaced with an American one, the Articles of Confederation kept power extremely decentralized. The government featured no president or executive at all, who might have been too much like a King. All national power was given to a Congress in which each state had a single vote. Members of Congress were elected by state legislatures rather than directly by the people. There was no judicial branch so all legal matters were left to the states (except for those legal matters where states were in dispute with each other). Each state had veto power over any change in the Articles; the states couldn’t even be compelled to contribute money, food, clothes, and munitions to their own troops in the dead of winter! For this reason, the colonists almost lost the war and remained British subjects!
Some historians like to focus on economic factors (since they believe that factors invoking ideas are “squishy” or “”slippery:”) If we take this approach, we would note that, in addition to its inability to collect sufficient taxes from the states, Congress lacked the exclusive power to make treaties and trade agreements or coin its own money. In short, the Articles of Confederation ultimately failed because it provided insufficient powers to the national government to operate functionally.
Proof of this last point happened in Shays’s Rebellion in Massachusetts where a group of farmers attempted to take over an arsenal in Springfield, MA for the purpose of resisting state courts’ attempt to make them pay their debts. This attempt to repudiate debts (cf. today’s mortgage foreclosure crisis) was repelled by a state militia. But it was close.
What do you think would have happened if Shays’s Rebellion had been successful?
Ultimately the Annapolis Convention in September 1776 led to the more familiar Philadelphia Convention (“Constitutional Convention”) of 1787.

9. Why Did We Need a Constitution?

10. Political Ideals of the Framers
Seventeenth-century political philosopher John Locke had a great influence on the Founders. Many ideas discussed in Locke’s writing appear in the Declaration of Independence and the Constitution.
Above is a picture of 17th century British philosopher John Locke. A medical doctor and a drafter of the (colonial-era) Fundamental Constitution of the Carolinas, Locke was probably the philosopher whom the Founders consulted most, although they were also influenced by other philosophers including Thomas Hobbes, Francis Bacon, Montesquieu, and Thomas Paine, etc. Among the Founders themselves, Jefferson, Madison, and Hamilton are the ones who are considered philosophically most important, meaning that their abstract ideals (and not just practical ideas) are considered important to this day.
A philosophical giant, Locke had ideas about a whole range of philosophical issues, everything from the Education of children to Epistemology (the study of learning). But as a political philosopher who influenced the Founders, Locke’s most important ideas were:
Republicanism – The belief that a form of government in which the interests of the people are represented through elected leaders is the best form of government.
“Consent of the Governed” (as the basis of legitimate authority) – The idea that a government gains its legitimacy through regular elections in which the people living under that government participate to elect their leaders.
Natural Rights – Or “unalienable rights,” the Declaration of Independence defines them as “Live, Liberty, and the Pursuit of Happiness.” (Locke’s list included “property” or ”estate.”) The Founders believed that upholding these rights should be the government’s central purpose.

11. Human Nature and Its Implications for Democracy
The framer’s viewed human nature as acting in their self interest
One of the challenges government faces is dealing with various factions that work towards self-serving goals rather than broader community interests.
James Madison, writing in Federalist #10, speaks eloquently about the problem of factions. “A number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
But what are factions? Factions are groups of like-minded people who try to influence the government. Often they try to dominate the government. American government is set up to avoid domination by any one of these groups.
Why do factions exist? Many reasons: differences of opinion, errors in reason, differences in wealth, property, native abilities; attachment to different leaders.
Madison saw two ways to eliminate the deleterious effects of factions, but only one that would work: Since “liberty is to faction as air is to fire,” one solution would be to eliminate liberty. This has obvious problems. A second way would be merely control factions by making sure that there were many of them and no one would grow too powerful.

12. Economic Interests and the Founders
The economic context of the American Founding had an important impact on the Constitution. Most Americans worked on small farms or as artisans or business owners, which meant that economic power was broadly distributed. This woodcut shows New York City (in the distance, upper right) around the time the Constitution was written, viewed from upper Manhattan, probably about where Harlem is today.
Many historians, especially Marxists, emphasize the economic “basic structure” of a nation’s economy over any of its purported ideals. (As the saying goes, “talk is cheap.”) Of particular prominence, the historian Charles Beard argued that the framers established the Constitution to protect their property holdings and investments—and the founders’ supposed ideas were just post-hoc justifications. However, there are problems with this interpretation; especially this: both the advocates and the opponents of the Constitution (Federalists and anti-Federalists, respectively) came from the upper classes.
The conclusion of David Robertson is that “The delegates who made Constitution were first and foremost politicians, not philosophers or real estate investors.”
The rest of the economic context is equally enlightening:
America had lots of land and landholders, no pre-existing feudalism, and therefore relative economic equality compared to Europe.
- The South was agricultural and therefore supported free-trade (to get their goods to market; whereas the North was a manufacturing base that wanted tariffs to protect its “infant industries.”

13. Origins of Our Constitution: Compromise at the Convention
Majority rule vs. minority rights
Large states vs. small states
Legislative vs. executive power
National vs. state and local power
Slave states vs. nonslave states
Remember that one of the “Big Lessons” of this book is that Political process matters! So it’s not surprising that many of our most important debates took place in (But there are obviously still very important debates going on today—e.g., gay marriage)
In developing our country’s basic rules, AKA the Constitution, there were already the beginnings of faction based on competing interest. The tensions that the framers had to overcome were:
Majority rule vs. minority rights
Large states vs. small states
Legislative vs. executive power (e.g., how do we choose an executive?)
National vs. state and local power
Slave states vs. non-slave states
Let’s go through these

14. Majority Rule vs. Minority Rights
Nuts and Bolts 2.3: Checks and Balances
When discussing majority rule vs. minority rights in the framing of the Constitution, it’s important to remember several things:
1. To the founders, this meant regional and economic minorities and not racial/ethnic minorities. (Think farmers vs. manufacturers vs. businessmen; also North v. South)
2. Factions should be set against each other to prevent the tyranny of any one faction.
Separation of powers
Checks and balances
Pluralism
By separating powers within the national government (e.g. Executive vs. legislative vs. judicial branches) and among the National, state, and local governments, we divide power to prevent tyranny of the majority. Madison also thought that a large number of parties and interests from across a large territory meant that different coalitions would form and no one faction would permanently dominate.
Today, in a modified form, this is called pluralism – the idea that having a variety of parties and interests within a government will strengthen the system while ensuring against “capture” by a single group.
[An interesting book on the topic is Theodore Lowi’s Interest Group Liberalism.]

15. Small States vs. Large States
Virginia Plan (favoring large states) vs.
New Jersey Plan (favoring small states)
Great Comprise
Virginia Plan – A plan proposed by the larger states during the Constitutional Convention in which representation in the national legislature was based on population. The plan also included a variety of other proposals to strengthen the national government.
New Jersey Plan – In response to the Virginia Plan, smaller states at the Constitutional Convention proposed that each state should receive equal representation in the national legislature, regardless of size.
Great Compromise – A compromise between the large and small states, proposed by Connecticut, in which Congress would have two houses: a Senate with two legislators per state and a House of Representatives in which each state’s representation would be based on population (also known as the Connecticut Compromise).

16. Legislative vs. Executive Power
How much power should the President have relative to the legislative branch?
Other questions include “How long should an executive serve?” and “Should there be one executive or three?”
Federalists who favored a strong executive thought that legislatures were too slow and unwieldy and favored “energy in the executive” so that a leader with strong “prerogative powers” could do the people’s business in the case of crisis. Anti-federalists thought this was a blank check for power. Madison came up with a compromise that all powers would have to be enumerated in the Constitution.
As for electing the presidents, the compromise that was reached gave us the electoral college where each state’s vote is based on its number of representatives and Senators.
The presidential system is in strong contrast to the parliamentary system that exists in most other democracies.
A parliamentary system is a system of government in which the legislative and executive power are closely joined. The legislature (parliament) selects the chief executive (prime minister) who forms the cabinet from members of the parliament.

17. Federal vs. State Power
Election officials in Broward County, Florida, examine ballots during the 2000 presidential election recount. The election outcome remained in doubt until the Supreme Court ended the recount, giving George W. Bush a razor-thin 537-vote win in a state that cast nearly 6 million votes.
Above is a picture of the 2000 Florida recount, an issue of contemporary national importance that hinged upon the balance of federal vs. state power. (For those who don’t remember, the Florida State Supreme Court seemed ready to allow Florida counties to keep counting “hanging chads” and other voting irregularities; the US Supreme Court decided that the equal protection of each citizen meant that recounts had to stop.
Federalism - the American system of divided power between autonomous levels of government that control different areas of policy.
Almost all important areas of dispute in American politics from the early days to today—apportionment of legislative seats, slavery, regulation of commerce and taxation, to amending the Constitution—involve federalism.
Later we will spend a whole chapter on Federalism but for now let’s look at two key terms:
The National Supremacy Clause of the Constitution is part of Article VI, Section 2, that states the Constitution is “the supreme Law of the Land,” which means national laws take precedent over state laws if the two conflict.
However, in a compromise with the Antifederalists, the first 10 amendments of the Constitution outline a Bill of Rights that protect individual rights and liberties.
Of these, the 10th Amendment states that all powers not delegated by the Constitution are reserved to the States and to the People.
How strict is the 10th Amendment? How much does it constrain what the federal government can do? This is a big issue even today. (For instance, some political leaders, including state attorneys general, are arguing that the recently enacted Affordable Care Act (healthcare reform) is unconstitutional because the Federal government cannot require citizens to purchase healthcare, only states would be entitled to do that.)

18. Slave States vs. Non-Slave States
A slave auction in Virginia. Slavery created several problems at the Constitutional Convention: Would there be limits on the importation of slaves? How would runaway slaves be dealt with by nonslave states? And how would slaves be counted for the purposes of congressional representation?
Slavery created several problems at the Constitutional Convention: would there be limits on the importation of slaves? How would
runaway slaves be dealt with by non-slave states? And how would slaves be counted for the purposes of Congressional
representation? This difficult, emotional, moral issue showed the limits and drawbacks of negotiation and compromise.

19. Slave States vs. Non-Slave States (Cont.)
Union and Confederate troops clash in close combat in the Battle of Cold Harbor, Virginia, in June The inability of the framers to resolve the issue of slavery allowed tensions over the issue to grow throughout the early nineteenth century, culminating in the Civil War.
In retrospect, the inclusion of slavery in the Constitution put the nation on a collision course for Civil War. However, given the political circumstances, the conventioneers were in a tough position to do much else and yet succeed at ratifying a Constitution.
The compromises that were reached that kept the African slave trade going were horrible but they also illustrated how legislative negotiation worked, then and now. The most (in)famous was the Three-Fifth Compromise, where the Constitutional Convention decided to count slaves as three-fifths of a person for the purposes of determining the number of House districts per state based on population. This was an example of “splitting the difference.”
An example of a “logroll” or vote-trade was when Northern states agreed that they would return runaway slaves and Southern states agreed to allow Congress to tax and regulate commerce and imports on a simple majority.
Finally, there was a compromise on how long importation of slaves would be allowed, and the convention settled on letting the slave trade continue to 1808 after negotiation.

20. Ratification
NUTS & BOLTS 2.2: Major Compromises at the Constitutional Convention
While there were still strong disagreements among the Constitutional Convention members, approval of the Constitution was nearly unanimous. Antifederalists were concerned with overly strong executive power and national power. The Federalists would ultimately placate this concern with a Bill of Rights (first 10 amendments to the Constitution).

21. Exclusive Powers (by Branch)
While the Constitution has its flaws (slavery, undemocratic elections of senators, and the president), its principles of separation of powers and checks and balances have lasted for over 220 years. So, what does the Constitution say?
Congressional powers include:
Raise revenue via taxing and borrowing 2. Regulate commerce 3. Coin money 4. Establish roads, patents, copyrights 5. Declare war 6. Control the “purse” 7. The necessary and proper clause (example of defining the scope of conflict and an example of how the interpretation of the Constitution changes)
In theory, the Executive Branch has many fewer powers than Congress:
Yet, the executive power “shall be vested” in the president, a phrase presidents have used to argue for greater executive power in recent administrations (See also Chapter 11 on the presidency). 3. Commander-in-chief 4. Ensures that laws are “faithfully executed” (Discuss the ways that the executive branch has grown through the establishment of a permanent bureaucracy, the accretion of rules and regulations in Federal Register, etc.)
Finally, the Judicial Branch (Article III), which has only six paragraphs devoted to it in the Constitution. In fact, the Constitution does not explicitly mention judicial review, the key power currently used by the Supreme Court.

22. The Constitution: A Framework for Government
Two of Congress’s exclusive powers are to raise and support armies and the power of the purse. The war in Iraq produced congressional struggles over whether the power to deny war funding should be used to force the executive branch to agree to a timetable for bringing troops home. Here, U.S. tanks patrol Sadr City, a Shiite stronghold in Baghdad, Iraq.
Shared Powers
No branch has exclusive control.
President can make treaties and nominate judges, but both are done with the “advice and consent” of the Senate
Congress’s war powers were originally intended to be shared with the President, but Presidents have essentially taken that power away from the Congress over time.
Negative or Checking Powers
President can veto, Congress can override it
President can be impeached, so can judges
Congress controls the money even if the executive branch is able to take power in other ways.
Judicial review allows the Supreme Court to determine whether laws are constitutional.

23. Is the Constitution a “Living Document”?
Some people argue that the Constitution should not be used to make policy, except for broader purposes such as expanding political rights or protecting equality. The 18th Amendment, ratified in 1919, prohibited the consumption of alcohol and is often upheld as an example of a failed policy attempt. In this 1933 photo, a beer distributor readies his first shipment following Ratification of the 21st Amendment, which repealed Prohibition.
Is the Constitution an example for all nations or an outdated document written by dead, elitist slave owners?
Bianco and Canon argue there are four reasons that the Constitution continues to be a “living document.”
. Turning a blind eye
. Ambiguity
. Changing the Constitution
. Multiple Interpreters

24. Amendments Introduced in Congress That Did Not Pass
TABLE 2.1
Many proposed constitutional amendments have almost no chance of passing. Indeed, most of those listed here did not even make it to the floor of the House or Senate for a vote. Why do you think a member of Congress would propose an amendment that he or she knew would fail?
SOURCE: The U.S. Constitution Online: Some Proposed Amendments, available at constamprop.html;

25. Amendments Introduced in Congress That Did Not Pass (cont’d)
TABLE 2.1 continued
Many proposed constitutional amendments have almost no chance of passing. Indeed, most of those listed here did not even make it to the floor of the House or Senate for a vote. Why do you think a member of Congress would propose an amendment that he or she knew would fail?
SOURCE: The U.S. Constitution Online: Some Proposed Amendments, available at constamprop.html;

26. Turning a Blind Eye Irrelevant parts are ignored in modern America.
But this raises the question: which parts of the Consitution are relevant and which are irrelevant?
Some are clearly irrelevant, such as the 3rd Amendment which forbids quartering troops in citizens’ homes. Another example is in Article I, Sectiion 4 that mandated that Congress assembles at least once a year. But sometimes this is extremely controversial. For a long time there was a heated debate about whether the Second Amendment guaranteed “the right to keep and bear arms” to individuals (as conservatives argued) or to “the militia” which many liberal law professors argued was superseded by the creation of the National Guard. Recently, this conflict has been decided by the Supreme Court which ruled in Heller vs. District of Columbia and MacDonald v. City of Chicago that the Second Amendment does protect an individual’s right to keep and bear arms.

27. Ambiguity
The 8th Amendment’s ban on “cruel and unusual punishment” is generally viewed as excluding capital punishment, but the execution of juveniles and the mentally retarded has been found unconstitutional. This picture shows the electric chair in the Southern Ohio Correctional Facility in Lucasville, Ohio.
Pictured above is an electric chair. For the most part, the Supreme Court has ruled that the death penalty does not run afoul of the Constitution’s ban on “cruel and unusual punishment.” However in 1972, in Furman v. Georgia, the Supreme Court ruled that the death penalty was unconstitutional. Then, in 1976, in Gregg v. Georgia the court ruled that the death penalty could be used constitutionally, if it were bifurcated into a “guilt-innocence” phase and a “sentencing” phase.
Certain interpreters would argue that this clearly dysfunctional: the relevant language in the Constitution didn’t change in these years. Others would say that this is how the constitution is supposed to work.
Most of the ambiguity comes from four(4) provisions:
Elastic clause - Also known as the “Necessary and Proper” Clause. Article I, Section 8, section 8, clause 18: The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Executive powers clause - Part of Article II, Section 1, of the Constitution that states, “The executive Power shall be vested in a President of the United States of America.” This broad statement has been used to justify many assertions of presidential power.
Commerce clause - Article I, Section 8, Clause 3:
“ [The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;” The Supreme Court’s interpretation of this has varied, but today it is used as the basis for much of Congress’s legislation. However, in previous times it was seen as a limit which prevented the ability of Congress to enact Child Labor laws, worker safety laws, minimum wage laws, and maximum hour laws for women. (see cases of Lochne v. New York; Muller v. Oregon; Adkins v. Childrens Hospital; West Coast Hotel v. Parish)
4. Enumerated powers – Powers granted explicitly to Congress, the President, or the Supreme Court in the first three articles of the Constitution. Examples include Congress’s power to “raise and support armies” and the President’s power as commander-in-chief.

28. Multiple Interpreters
Sonia Sotomayor is sworn in before the Senate Judiciary Committee at her confirmation hearings to become a justice of the Supreme Court. The president and the Senate share the appointment power to the federal courts: the president makes the nominations, and the Senate provides its “advice and consent.”
Although the Supreme Court has the goal of interpreting the Constitution (by adjudicating “actual cases or controversies” not hypothetical ones), in reality, interpreting the constitution falls on every branch of government and the citizenry. Only when a challenge is brought to the Supreme Court does that institution have a final “judicial review.”
Multiple Interpreters
Implied powers often flow from the ambiguity of parts of the Constitution, such as the commerce clause.
Public opinion and social norms also affect the interpretation of the Constitution; there is even some evidence that judges are responsive to public opinion.

29. Amending the Constitution
Changing the Constitution
Can be called by Congress with two-thirds approval from both houses
Can also be called by a national convention called by two-thirds of state legislatures
Must be ratified by three-fourths of state legislatures or state conventions

30. Public Opinion Poll
Do you believe the U.S. Constitution written at the Philadelphia Convention of 1787 was driven more by noble principles or political self-interests?
Driven primarily by noble principles
Driven primarily by political self-interests
A mix of noble principles and political self-interests

31. Public Opinion Poll
How would you characterize a contemporary group of political leaders who declare their independence and call for an armed revolution in response to their dissatisfaction with government taxes and representation?
Patriots
Terrorists
Neither

32. Public Opinion Poll
Do you believe the U.S. Constitution with its included amendments would be ratified by a majority of Americans if put forward as a referendum during the next election?
Yes No

33. Public Opinion Poll
Considering the current number of amendments to the U.S. Constitution, the number of amendments that have failed, and the stability of our Constitution, do you believe the process for amending the U.S. Constitution is too difficult, about right, or too easy?
Too difficult
About right
Too easy

34. Public Opinion Poll
How do you believe the Founding Fathers would view the contemporary U.S. government?
Strongly approve
Approve, but with some concerns
Disapprove
Strongly disapprove

35. Chapter 2: The Constitution and the Founding
Practice quizzes
Flashcards
Outlines
wwnorton.com/studyspace

37. Following this slide, you will find additional slides with photos, figures, and captions from the textbook.

38. Conflicts Around The Constitution
The Constitution attempts to strike a balance between protecting our civil liberties from government intrusion and providing for a strong enough government to protect our national security. One consequence of the terrorist attacks of September 11 was more rigorous screening at airports and more widespread surveillance to try to stop the next terrorist attack.

39. The U.S. Constitution as a Model for Other Nations
Many countries have no separation of church and state. Religious leaders are powerful political players in Iraq’s fledgling democracy. This picture shows Iraqis holding posters of radical Shiite cleric Muqtada al-Sadr during a service in Kufa, Iraq, on March 28, 2008.