THE CONSTITUTIONHistorical background of, Writing of, and Content of

WHAT IS A CONSTITUTION?

Idea of “higher law”, limited government, constitutional government

Procedural v. policy document The longevity of the US Constitution – why?

---Ideal (Goldilocks) level of detail & constraint---Major exceptions: Articles of Confederation, Civil War

Problems w/the Articles of Confederation govt. that led to calls for revision/replacment

INFLUENCES ON FOUNDERS @ CONSTITUTIONAL CONVENTION

1.) Ancient Theories/Historical Experiences--Athenian experiment w/direct democracy--Roman ideas of representative and mixed govt.--Biblical ideas: antipathy toward secular govt., idea of higher law, ambiguous NT messages

2.) The British Tradition: despite lack of single-document written constitution, UK pioneered the idea of “constitutional (limited) monarchy”

INFLUENCES ON FOUNDERS CONT’D

British working model of “mixed govt.”: monarch, H of Lords, H of Commons

3.) Contemporary Political Philosopherssocial contract theory: Hobbes, Locke, RousseauMontesquieu’s separation of powers

4.) The colonial experience --”benign neglect” and autonomy before Seven Years War

--appointed exec, elected legislatures--Britain cracks down: more taxes more resistance - more repression

--Specific concerns about govt. repression in US Const. and Bill o’ Rights

INFLUENCES ON FOUNDERS CONT’D

Cumulative conclusions from all these influences1.) They wanted a stronger, more effective govt. than the Articles had provided, but not too strong2.) Mixed, somewhat decentralized govt. was good for protection of liberties and to avoid “radical” policies3.) Some popular influence, but not a direct democracy

THE PROCESS OF DRAFTING CONSTITUTION: ILLUSTRATES POLITICAL LESSONS STILL RELEVANT TODAY?

1.) Secrecy, and All-or-Nothing Proposals, can help the advocates of change (but can provide focal points for opposition too!)2.) Politics is about BOTH principles and practical self-interest---Conventional view of Founders vs. Beard’s Economic Interpretation

3.) Bundles of compromise leaves no one totally happy, no one totally unhappy:e.g. Great Compromise, 3/5 Compromise, Electoral College, Federalism

CONTENT OF THE CONSTITUTION

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.” --James Madison, Federalist Papers #51

TWO MAJOR GOALS OF THE CONSTITUTION

1.) Create a more effective, powerful, national government

2.) Ensure protection of individual and minority rights

CONTENT OF THE CONSTITUTION(CONTINUED)

I. Increasing Power and Effectiveness of National Govt.

1.) More Federal authority in taxes, establishing currency, interstate commerce, foreign policy—even patents & bankruptcy law2.) “Elastic” (a.k.a. “necessary & proper”) clause gives Congress additional “implied” powers (1819 McCulloch v. Maryland)3.) New, independent executive branch that could act quickly, decisively, and secretly4.) New Federal judiciary and Supremacy Clause

5.) Public directly elects House of Representatives—gives nat’l govt. more legitimacy

CONTENT OF THE CONSTITUTION CONTD.

II. Multiple layers of protection for individual liberties and minority rights, to guard against “ToM”1.) Diverse, pluralistic “extended republic” (Federalist 10)—w/cross-cutting, rather than reinforcing cleavages2.) Horizontal separation of powers w/checks and balances---branches separated by time, geographical locus, and function

3.) Federalism (vertical sep. of powers): states retain most impt. Functions: criminal law, family law, education

4.) Explicit limitations on Federal govt. powera.) In the text of the original Constitution (habeas corpus, no bills of attainder, no ex post facto laws, no titles of nobility)b.) In the Bill of Rights

CONTENT OF CONSTITUTION CONTD

BoR (ratified 1791, 2 yrs. after Const. went into effect)

First: freedoms of speech, assembly, religion, petition, pressSecond: guns, Third: no quartering troopsFourth: search and seizureFifth: no self-incrimination, takings clause, no double jeopardy, due processSixth: trial by jury, rights to confront witnesses and obtain counselEighth: no cruel and unusual punishmentNinth: other rights not precludedTenth: powers not given to Feds go to states and/or individuals

RATIFICATION PROCESS

9/13 states Bypassed state legislatures, put

ratification in hands of state conventions elected by the people

Federalist v. Anti-Federalist propaganda Some ratification votes very close!

AMENDMENT PROCESS

Two different ways of proposing amendments Two different ways of ratifying amendments Types of Amendments (after BoR)

1.) expanding citizenship and voting rights (13th, 14th, 15th, 19th, 23rd, 24th, 26th)2.) refining presidential election/inaug system (12th, 20th, 22nd, 25th)3.) creating Federal income tax (16th)4.) direct election of Senators (17th) 5.) congressional pay raise (27th)

Deadlines for ratification: yes on ERA, no on pay raise