US Constitution Chapter 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

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

“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?

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

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, 1775-76

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

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

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

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

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

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

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 1776-1787

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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’

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

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

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

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

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

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

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

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

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

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

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

Expansion of liberty and equality in the US Effect of Amendments

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

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

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

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

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

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

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

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