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The Institutionalization of Power Poli 110J 2.2 We, the People.

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1 The Institutionalization of Power Poli 110J 2.2 We, the People

2 Course Website – All class documents, electronic readings are here

3 Federalist Papers People are fundamentally bad Anarchy is the most pressing threat The United States is a single nation of people

4 Anti-Federalist Papers People are fundamentally good The most pressing danger is despotism The United States is a union of sovereign republics

5 Federalist Papers The problem with factions Fed. #10 – Republics are prone to factionalization – Factions: groups within the republic united by interest or passion – "There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects But: The latent causes of faction are thus sown in the nature of man

6 Federalist Papers The problem with factions Fed #10: The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

7 Federalist Papers The problem with factions Fed #10 If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.

8 Federalist Papers The problem with factions Fed #10: When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.

9 Federalist Papers Solution: Separation of powers – Legislature – Executive – Judiciary Checks & balances – By setting factions & branches of govt against each other, none will be able to dominate Protection of minority groups

10 Federalist Papers Solutions Fed #51: Division of power "where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."

11 Federalist Papers Solutions Fed #51: Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

12 Anti-Federalist Response Plans of Publius are: Impractical: local identity > national identity, central government cant control periphery (AF #14) Aristocratic/oligarchic: designed to take power for the few & exclude the many (AF #51) Imperial: Central govt will use standing armies primarily for internal suppression of local rebellion (AF #51)

13 Federalist The Executive: – 4 year terms (Fed #69) – No legislative power but veto (Fed #69) – Commander-in-chief of armed forces (Fed #69) But cant declare, raise or regulate armed forces – Under the law (Fed #69) – Lacks ability to create noble titles, other powers of kings (Fed #69) – Strong executive makes for strong govt (Fed #69) – Single executive makes it easier to affix responsibility (Fed #69) Notice how concerned Hamilton is with demonstrating that the Executive is not a king

14 Anti-Federalist Response Anti-Federalist #70 Youre just electing a king! – Kingship should at least be hereditary Else there will be civil wars, and presidents will stage coups so that they dont have to leave power

15 Federalist Legislature (Fed. 39) the sources from which the ordinary powers of government are to be derived:

16 Federalist Legislature (Fed. #39) The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal.

17 Federalist Legislature (Fed. #39) The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL

18 Federalist Legislature (Fed. #39) The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL

19 Anti-Federalist AF #51 Senate aristocratic, excludes the voice of the people. Expect power of House of Representatives to be undermined

20 Federalist Judiciary (Fed. #78) – Lifetime appointment to retain independence – Power of judicial review – A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

21 Anti-Federalist AF #78-79 Essentially, the complaint is that the constitutional position of judges is anti- democratic – there is no power above them that can control their decisions, or correct their errors. – There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries – in many cases their power is superior to that of the legislature.

22 Constitution of the United States of America 1787 – Congress of the Confederation votes to begin plan to revise/replace Articles of Confederation – Invite states to send delegates to Philadelphia Convention (only RI refuses) – Contrary to Articles of Confederation, Art. VII says that only 9 participating states need ratify the new Constitution for it to go into effect – Adopted September 17, 1787

23 Constitution of the United States of America What does it mean to constitute? We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

24 Constitution of the United States of America Legislature (Article I) – Broad powers over declaration of war, commerce (foreign & interstate), law, currency, punishment, etc.

25 Constitution of the United States of America House of Representatives Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. – Changed by 13 th & 14 th amendment

26 Constitution of the United States of America Senate The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote – changed by 17 th amendment to direct election Compromise between small and large states

27 Constitution of the United States of America Executive – Commander-in-chief of armed forces – Appoint to offices – Grant pardons – Sees that laws are faithfully executed – Veto Can be overridden by 2/3 majority of legislature

28 Constitution of the United States of America Judiciary Congress creates lower courts, but there must be a Supreme Court Lifetime appointment Constitutional review – Constitution is the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding (Art. 6)

29 Constitution of the United States of America No amendment may affect slavery until 1808 – Compromise to maintain unity

30 Bill of Rights Hamilton against, Jefferson in favor Madison proposes Bill of Rights during ratification process for Constitution 1789, ratified 1791 – A compromise to keep the Constitution from being derailed

31 Bill of Rights The case against: Hamilton in Fed. #84 in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. bills of rights… are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.

32 Bill of Rights The case for: Brutus in AF #84: The most important article in any Constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.

33 Bill of Rights Individualistic Restrictive of the powers of government – Negative liberty

34 Bill of Rights 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

35 Bill of Rights 2. A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

36 Bill of Rights 3 & 4: Security of property from the state – Protection from the quartering soldiers – Protection from unreasonable search & seizure

37 Bill of Rights 5-8 Governing arrest, trial, and punishment of crimes

38 Bill of Rights 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

39 Coming Up Fri: Winthrop, Calhoun, Webster Mon: MLK holiday Wed: OSullivan

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