1. Constitutional Government
Chapter 1
Prepared by Teresa Nevárez, El Paso Community College
© 2008 Pearson Education, Inc.

2. Constitutional Democracy: John Locke
Background: Locke was widely read by American colonists and his ideas influenced many writings of the 18th century, mainly the Declaration of Independence

3. Second Treatise, of Civil Govt. (J. Locke)
Perfect freedom is the state of nature for men
In the natural state equality exists
Equality of advantages
No subordination
The Law of Nature
Men are rational beings
No liberty to destroy himself
No liberty to destroy others
Being equal, no right to harm another’s life, health, liberty, or possessions
Must preserve himself
Only in the name of justice can one take or impair the life of others

4. Second Treatise, of Civil Govt. (J. Locke)
In the Law of Nature
The law of nature is in the hands of every man
Punishment must be comparable to the crime committed
Why leave the state of nature to join a society?
Life is unsafe, insecure, and dangerous
Irregular exercise of power
Greatest end is to preserve property
To join a society:
Build laws based on common consent of right and wrong
Neutral judges to impart the established laws

5. Second Treatise, of Civil Govt. (J. Locke) Government must:
Be based on the promulgation of established laws and apply them equally to everyone
Have as its end, the good of the people
Not raise taxes without the consent of the people/their representatives
Legislature cannot transfer the power to make laws to anybody else
People can dissolve a government:
If unauthorized people are creating laws
If force is used without a right

6. Framing the Constitution: Elitist or Democratic Process: John P. Roche
The Founding Fathers: A Reform Caucus in Action
The Founding Fathers were superb democratic politicians
They were political men working within a democratic framework
The Philadelphia Convention was a nationalist reform caucus
It endorsed a stronger centralized government
Their work was done within the limits of consensus

7. The Founding Fathers: A Reform Caucus in Action (J. Roche)
The Constitution is a practical political document
Constitutionalists had tremendous influence over public opinion
The project would have failed without the support of New York
Georgians supported a stronger central government that would provide military protection for them
New Jersey and Connecticut wanted to free themselves from the economic control of New York
Virginia wanted more power in the new political system

8. The Founding Fathers: A Reform Caucus in Action (J. Roche)
Some supported the Constitution simply because the wrong people were against it
Others supported the Constitution so the U.S. could assume its rightful place in the international arena
Delegates had structural differences, not ideological
Assets of Constitutionalists:
Energy and talent of its leaders, such as George Washington, John Adams, and Thomas Jefferson
Acting fast by keeping opposition always on the defensive

9. The Founding Fathers: A Reform Caucus in Action (J. Roche)
Agreement to secrecy
Virginia Plan
Drafted by James Madison
Proposed to make amendments with approval of 9 states
Promoted a unitary national government
Lower House of Congress to be elected by people with membership based on population
Upper House of Congress to be chosen by the Lower
Both chambers would elect the executive
Both chambers would elect the judges
Congress had control over military
Under this plan Massachusetts, Virginia, and Pennsylvania would dominate

10. The Founding Fathers: A Reform Caucus in Action (J. Roche)
New Jersey Plan
Affirmed that the constituents of central government were the states, not the people
Concentrated efforts on weaknesses of the Virginia Plan
Favored a strong central government but not one that privileged the big states
Connecticut Compromise
Supported equal representation in the second chamber
Electing an Executive
Proposals
Elected by the people
Elected by state governors
Elected by electors chosen by state legislatures

11. The Founding Fathers: A Reform Caucus in Action (J. Roche)
Elected by an Electoral College chosen by a lot from Congress
Decision on the executive
Chosen by an Electoral College
State legislatures would chose the method of selection of electors
Small states were guaranteed a minimum of 3 votes
Big states would have proportional power
Citizens could be involved in the choice of electors
The House would decide in the event no presidential candidate received a majority
The Electoral College was to be temporary

12. The Founding Fathers: A Reform Caucus in Action (J. Roche)
3/5 Compromise
Morality of slavery was not an issue
The issue of slavery was one of taxation, commerce, and representation
Some states supported the 3/5 compromise in exchange for support on navigation and commercial laws
Within 8 months, 8 states had ratified the new Constitution

13. Framing the Constitution: Elitist or Democratic Process: Charles A
Framing the Constitution: Elitist or Democratic Process: Charles A. Beard
Framing the Constitution
Laws are to be understood by the circumstances of their enactment
Two parties in existence during the adoption of Constitution
One emphasized strengths and efficiency in government
The other highlighted its popular aspects
The men involved in the construction of the Constitution were bold and radical thinkers

14. Framing the Constitution (C. Beard)
Pushed for doctrine of individual rights
Supported the idea of a small government
Government was a necessary evil to be diligently supervised all the time
Supported the idea that man was a rational being with an innate sense of justice
Issues at stake:
Maintenance of social order
Payment of public debt
Creation of a sound financial system
Development of new economic resources
Problems:
Holders of securities of the Confederacy did not receive interest on their loans
Frontier lands were insecure

15. Framing the Constitution (C. Beard)
The currency of the states hopelessly confusing
Depreciated paper money
Articles of Confederation were inadequate
Annapolis Convention: few showed up but gave opportunity to call for Philadelphia Convention
Philadelphia Convention
Delegates were chosen by state legislatures or by governors
They were all men of political experience and practical knowledge
They were ex-governors, Congressmen, military men, public administrators, lawyers, etc.
They represented the solid, conservative, commercial, and financial interests of the country

16. Framing the Constitution (C. Beard)
Purpose of Convention
To establish a stronger government that would
Pay the national debt
Regulate interstate and foreign commerce
Provide for national defense
Prevent fluctuations in the currency
Control propensities of legislative majorities to attack private rights
Provide stability and efficiency
Secure private right against majority factions
Popular governments were considered in slight regard
Delegates were not particularly interested in attaining a democracy or equality

17. Federalist 47, 48, 51
Background: Our political system is best described as a constitutional democracy: a government that is regulated by laws that limit its exercise of power. The separation of powers was designed so no given group would gain control of the national apparatus.

18. Federalist 47: James Madison
The idea of separation of powers is to prevent any of the parts of government from becoming disproportionably powerful
Montesquieu stated that there could be no liberty where the legislative and executive powers are placed in the same person or body
The constitution of Massachusetts stipulates that the legislative, executive, and judicial branches should never exercise the powers of the others

19. Federalist 48: James Madison
The different branches should be connected in a way that each should have constitutional control over the others
Powers of one branch should not be administered by either of the other departments
A mechanism should be established that would provide a practical security for each against invasion by the others
The legislature has direct access to the people, giving it a greater facility to dominate the other two branches

20. Federalist 51: James Madison
Divide government into separate and distinct branches that will keep each other in their proper place
Each branch checking on the other
The legislative branch has a tendency to dominate; thus, it should be divided into separate Houses
Each department should be as little dependent as possible on the others
Enable government to control the governed
Enable government to control itself

21. Interpreting the Constitution
Background: The framers of the Constitution created a flexible document for future generations to apply. It is a bare-bones document that has been in place for over 200 years. The on-going debate is over how it should be interpreted : strictly or loosely.

22. How Not to Read the Constitution: Tribe & Dorf
The Constitution was perceived as a document that sought a balance between governmental power and individual liberty
The Bill of Rights serves as an auxiliary precaution against tyranny
Not even the most conservative justices believe in a jurisprudence of original intent
Conservatives no less than liberals go beyond a fixed meaning of the Constitution
We must reject the idea of an infinitely malleable Constitution