Chapter 2 Chapter 2 ConstitutionConstitution

Sources of the ConstitutionSources of the Constitution

I.I. British customs and traditions, e.g. British customs and traditions, e.g. Magna Carta and English Bill of Magna Carta and English Bill of RightsRights

A.A. [yet only 4% of Englishmen had [yet only 4% of Englishmen had suffrage in late 18th C.]suffrage in late 18th C.]...here is a law which is

above the King and which even he must not

break. This reaffirmation of a

supreme law and its expression in a general

charter is the great work of Magna Carta;

and this alone justifies the respect in which

men have held it.--Winston Churchill, 1956

II. Colonial experiences, e.g. power of II. Colonial experiences, e.g. power of elected assemblyelected assembly

When Englishmen left their homeland to establish colonies in the New World, they brought with them charters guaranteeing that they and their heirs would "have and enjoy all liberties and immunities of free and natural subjects." Scant generations later, when these American colonists raised arms against their mother country, they were fighting not for new freedoms but to preserve liberties that dated to the 13th century.

III.III. Colonial Charters and State Colonial Charters and State ConstitutionsConstitutions

Signing of the Mayflower Compact

IV.IV. Experience under the Articles of Experience under the Articles of Confederation (and weakness Confederation (and weakness thereof)thereof)What astonishing changes a few years are capable

of producing! I am told that even respectable characters speak of a monarchical form of government without horror. From thinking proceeds speaking, thence to acting is often but a single step. But how irrevocable & tremendous! What a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal & falacious! Would to God that wise measures may be taken in time to avert the consequences we have but too much reason to apprehend. -George Washington, letter to John Jay August 15, 1786

IIII The The realreal revolution revolution

I.I. radical change in belief about what radical change in belief about what made made authority legitimateauthority legitimate

II.II. government by consent [government by consent [social social contractcontract]]

III.III. written constitution written constitution with its direct with its direct grant of powergrant of power

IV.IV. legislative superiority legislative superiority over over executive branchexecutive branch

Constitutional Convention, 1787Constitutional Convention, 1787

I.I. Background Background A.A. Declaration of Indep. Declaration of Indep. Rev. War Rev. War

Articles of Confederation & its weaknessArticles of Confederation & its weaknessWhat were the weaknesses of the Articles?What were the weaknesses of the Articles?

B.B. Annapolis Convention, 1786 called to Annapolis Convention, 1786 called to improve the Articles improve the Articles poor attendancepoor attendance

C.C. Shays' Rebellion, 1786 Shays' Rebellion, 1786 became clear became clear that the Articles of Conf. needed to be that the Articles of Conf. needed to be alteredaltered

Constitutional Convention: DelegatesConstitutional Convention: Delegates

I.I. Characteristics: "well-read, well-fed, well-Characteristics: "well-read, well-fed, well-bred, well-wed"bred, well-wed"

II.II. The big namesThe big namesA.A. Madison: "Father of the Constitution"; Madison: "Father of the Constitution";

leadership, detailed notes of proceedings, leadership, detailed notes of proceedings, Federalist PapersFederalist Papers

B.B. Washington: presiding officerWashington: presiding officer

C.C. Franklin: elder statesmanFranklin: elder statesman

D.D. Morris: largely responsible for final wordingMorris: largely responsible for final wording

E.E. Hamilton: most forceful advocate for strong Hamilton: most forceful advocate for strong central governmentcentral government

F.F. others?others?

Constitutional Convention:Constitutional Convention:Areas of agreementAreas of agreement

1.1. Virginia Plan became agenda Virginia Plan became agenda scrap scrap the Articles of Confederationthe Articles of Confederation

2.2. establish a republican governmentestablish a republican government

3.3. establish a constitutional governmentestablish a constitutional government

4.4. establish a balanced government establish a balanced government where no single interest dominateswhere no single interest dominates

5.5. suffrage for property owners onlysuffrage for property owners only

6.6. stronger central governmentstronger central government

7.7. protection of property rightsprotection of property rights

8.8. keep the proceedings secretkeep the proceedings secret

Constitutional Convention: Disagreement & Constitutional Convention: Disagreement & CompromiseCompromise

I.I. Representation among the states: The Representation among the states: The Great Compromise (Connecticut Great Compromise (Connecticut Compromise)Compromise)

A.A. large states favored the Virginia Plan large states favored the Virginia Plan 1.1. bicameral legislature: both houses based on state bicameral legislature: both houses based on state

populationpopulation

B.B. small states favored the New Jersey Plansmall states favored the New Jersey Plan1.1. No change to Articles of Confederation, unicameral No change to Articles of Confederation, unicameral

legislature: each state gets one votelegislature: each state gets one vote

C.C. Connecticut Compromise: Connecticut Compromise: 1.1. bicameral legislature bicameral legislature

2.2. popularly-elected House (based on population) popularly-elected House (based on population)

3.3. Senate (equal rep.) elected by the state legislaturesSenate (equal rep.) elected by the state legislaturesSenate election process changed after the ratification of the 17th Senate election process changed after the ratification of the 17th amendmentamendment

Ratification processRatification process

I.I. FederalistsFederalistsA.A. views: views:

1.1. feared feared excesses of democracyexcesses of democracy

2.2. favored strong central government and favored strong central government and government by competing elites (Madison government by competing elites (Madison in Federalist 10).in Federalist 10).

B.B. Hamilton, Madison, Washington, Jay.Hamilton, Madison, Washington, Jay.

Ratification ProcessRatification Process

I.I. AntifederalistsAntifederalistsA.A. views: views:

1.1. feared concentration of power in elites, feared concentration of power in elites, strong central government (favored states), strong central government (favored states), and lack of a Bill of Rights. and lack of a Bill of Rights.

2.2. Believed government should be closer to Believed government should be closer to the people.the people.

B.B. Henry, Mason, Gerry and JeffersonHenry, Mason, Gerry and Jefferson

Ratification ProcessRatification Process

I.I. Federalists' advantageFederalists' advantageA.A. better represented in state legislaturesbetter represented in state legislatures

B.B. controlled the presscontrolled the press

C.C. quick ratification process before quick ratification process before Antifeds. can get organizedAntifeds. can get organized

D.D. agreed to a Bill of Rights, but not agreed to a Bill of Rights, but not

originally, originally, Why?Why?

Why was the Bill of Rights an Why was the Bill of Rights an afterthought?afterthought?

I.I. many Constitutional guarantees--habeas corpus, many Constitutional guarantees--habeas corpus, no ex post facto laws, no religious test for office, no ex post facto laws, no religious test for office, no bill of attainder etc. no bill of attainder etc.

II.II. most states had Bill of Rightsmost states had Bill of RightsIII.III. the Constitution was intended to limit specific the Constitution was intended to limit specific

powers of the federal gov.powers of the federal gov.IV.IV. forgotten rightsforgotten rights--fear of not listing all rights----fear of not listing all rights--

MadisonMadisonA.A. note: Bill of Rights did not require all states for note: Bill of Rights did not require all states for

ratification, Georgia waited until 1939ratification, Georgia waited until 1939

Principles of the ConstitutionPrinciples of the Constitution

A.A. Federalism: Federalism: Dividing power between the Dividing power between the states and the national governmentstates and the national government

1.1. enumerated powersenumerated powers example: Article 1, example: Article 1, Section 8 Coin money, conduct foreign Section 8 Coin money, conduct foreign relations, declare war, establish courts, relations, declare war, establish courts, provide army and navyprovide army and navy

2.2. reserved powersreserved powers ex.: conduct state ex.: conduct state elections, Ratify amendments to the federal elections, Ratify amendments to the federal Constitution, Establish local governmentsConstitution, Establish local governments

3.3. concurrent powersconcurrent powers ex.: tax, borrow ex.: tax, borrow money, establish courts, make and enforce money, establish courts, make and enforce laws laws

Principles of the Constitution, conPrinciples of the Constitution, contt ’’dd

A.A. Limited governmentLimited government1.1. Federal government has only Federal government has only

those powers listed in those powers listed in ConstitutionConstitution

2.2. Bill of Rights--safeguard Bill of Rights--safeguard against possible tyranny from against possible tyranny from a new, strong, distant a new, strong, distant government. government. Fear of state Fear of state governments too?governments too?

Principles of the Constitution, conPrinciples of the Constitution, contt ’’dd

I.I. Separation of PowersSeparation of Powers1.1. Tyranny was government that controlled Tyranny was government that controlled

all 3 branchesall 3 branchesa.a. division of power between executive, division of power between executive,

legislative, and judicial branches was legislative, and judicial branches was necessary—Madisonnecessary—Madison

b.b. Division and competition forces congress to Division and competition forces congress to check itselfcheck itself

““You better check yo self, before You better check yo self, before you wreck yo self.you wreck yo self.”” –Ice Cube –Ice Cube

Principles of the Constitution, conPrinciples of the Constitution, contt ’’dd

A. Checks and Balances1.1. system of restraintssystem of restraints2.2. Example: veto, override, appointment and Example: veto, override, appointment and

confirmation, treaty-making and ratification, confirmation, treaty-making and ratification, defense funding and Commander-in Chief.defense funding and Commander-in Chief.

3.3. Political independence Political independence within each branch: within each branch: including not being dependent upon the other including not being dependent upon the other two for election (OK the Court, but confirm by two for election (OK the Court, but confirm by Senate + life term)Senate + life term)

4.4. Staggering of terms Staggering of terms of each branchof each branch5.5. Levels of govLevels of gov’’t could serve as checks on each t could serve as checks on each

otherothera.a. FactionsFactions, groups with distinct political interests, , groups with distinct political interests,

would balance the system.would balance the system.b.b. CoalitionsCoalitions (alliance of factions) would be necessary (alliance of factions) would be necessary

to rule, argues Madison in Federalist 51, but they to rule, argues Madison in Federalist 51, but they would be moderate because of the variety of would be moderate because of the variety of factions includedfactions included

Principles of the Constitution, conPrinciples of the Constitution, contt ’’dd

A.A. Judicial ReviewJudicial Review1.1. Power of courts to strike down laws or Power of courts to strike down laws or

government actionsgovernment actions

2.2. Not explicitly provided for Not explicitly provided for (Constitution written in broad terms)--(Constitution written in broad terms)--leads to need for interpretation--most leads to need for interpretation--most logically falls to the courtslogically falls to the courts

3.3. established by established by Marbury v. Madison, Marbury v. Madison, 1803.1803.

a.a. Opinion: the Court, NOT Congress had the Opinion: the Court, NOT Congress had the power to review acts of Congresspower to review acts of Congress

Formal AmendmentsFormal Amendments

I.I. Process of amending reflects Process of amending reflects federal system.federal system. What does that What does that mean?mean?

A.A. ProposalProposal1.1. 2/3 vote in both houses (all done this way)2/3 vote in both houses (all done this way)2.2. Convention called by Congress at request Convention called by Congress at request

of 2/3 statesof 2/3 statesa.a. never done this waynever done this wayb.b. fear of "runaway" conventionfear of "runaway" convention

B.B. Ratification--2 methodsRatification--2 methods1.1. 3/4 of state legislatures--all but the 21st 3/4 of state legislatures--all but the 21st

done this waydone this way2.2. Ratifying conventions in 3/4 of the statesRatifying conventions in 3/4 of the states

a.a. more democratic this way?more democratic this way?

Changing the Constitution Changing the Constitution informallyinformally

I.I. Due to difficulties of formal changes, Due to difficulties of formal changes, informal informal ways developedways developed

A.A. Acts of Congress--Acts of Congress--Judiciary Act of 1789 (est. Judiciary Act of 1789 (est. federal court system)federal court system)

B.B. Judicial rulings-- Judicial rulings-- Brown v. Board, Roe v. Wade Brown v. Board, Roe v. Wade etc. etc.

C.C. Presidential actions--Presidential actions-- police actions, executive police actions, executive privilege, and impoundment.privilege, and impoundment.

D.D. Customs and traditions--Customs and traditions--Cabinet, political Cabinet, political parties, committee system in Congress, senatorial parties, committee system in Congress, senatorial courtesy, legislative veto, pres. nominating courtesy, legislative veto, pres. nominating conventions.conventions.