The Constitution

U.S. Chapter 2

The Paradoxical US Constitution

The constitution … Is the most respected political document in the US

and the most misunderstood Attempts to create a powerful, yet limited government Rested on popular support, but limited popular

participation Revered human rights, but allowed for slavery,

second class status for women Was based on political idealism but also pragmatic

compromises

The Nature of Constitutions Every group has rules of operation

From clubs to countries Long history of constitutions in West

Ancient Greece, Magna Carta After fall of Roman Empire, Middle Ages

Divine Right, backed by theology and military might The Enlightenment was an intellectual, political and

scientific movement focusing on humanism Challenged idea of Divine Rights, England – John Locke

Argued government was about serving people Against idea that people served divinely appointed ruler

English/Colonists’ Experiences with Constitutions

Magna Carta in 1215 first limit on power of English Monarch Slow development of “unwritten constitution” in England

English Bill of Rights in 1689 required that English Monarch could not act without approval of parliament English Glorious Revolution in 1689, theorist John Locke English Monarch today is symbolic, Parliament has power Many similar rights in US Bill of Rights

English settlers who came to America wrote constitutions for their colonies and then again for states when gained independence from England Starting with Mayflower compact in 1620

The RevolutionaryRoots of the Constitution

Colonists in America in the late 1700’s enjoyed a degree of freedom few other people had at that time

The Continental Congress asked a committee to write a statement of independence

The resulting Declaration of Independence followed John Locke’s idea of government based on consent of the people

From Revolution to the Articles of Confederation

The Articles of Confederation created a confederal system: power is centered in the regional governments Each state had supreme

power within its borders The national government was

weak

Under the Articles of Confederation: 1781-1789

Created a weak central government One house legislature and no independent

executive or judiciary The central government had no power to force states to

follow its laws States could not be required to collect taxes for the

national government Each state of the 13 states had one vote in the

legislature, passing a bill required 9 votes To amend the Articles of Confederation required a

unanimous vote of all states

Under the Articles of Confederation: 1781-1789

The Articles of Confederation allowed the national government to Create a national army and print money

But states could and also did do these things Created state militias and printed their own money States did not always recognize other states contracts

The main point is that the Articles of Confederation was a Confederal system The main power was at the state level, not the national

level

Under the Articles of Confederation: 1781-1789

Why was the US set up this way? People thought of themselves as residents of

states first Colonies, in some cases, had existed for more than

100 years, the US had just been created States were competing with each other over westward

expansion and did not want to be limited by national government

People had rebelled against a strong central government (England) and did not want to recreate that

Under the Articles of Confederation: 1781-1789 The Articles of Confederation failed because:

The national government had no power to tax

There was no independent leader to direct the national government

The national government could not regulate interstate and foreign commerce

It could not be amended without the unanimous consent of all the states

It was unable to react quickly to emergencies (Shay’s Rebellion)

The Constitutional Convention

A convention was called to revise the Articles in Philadelphia in 1787 Immediate cause was concern about

the national government’s inability to respond to Shay’s rebellion

All states except Rhode Island sent delegates

The Constitutional Convention The people who attended the convention were

people involved in the revolutionary war and national gov’t George Washington – most popular person in US Alexander Hamilton – advocate for strong central gov’t James Madison – had many ideas, kept important

journal Generally upper and middle class

Some have argued convention was for benefit of wealthy, but some wealthy opposed constitution, and some wealthy favored constitution

Key motivation for involvement seems to be support for stronger national government, concern US was too weak to survive

The Constitutional Convention Some historians have argued founders were just

trying to protect their economic self-interest The constitution does protect property and the rule of law But, the constitution allowed for social mobility and

opposed titles of nobility In general the founders were middle to upper class

Today some people make claims about the religious nature of the founders When you examine the religious background of the

founders there is a diversity of religious backgrounds and some people with no formal religious ties

Based on what was written in the constitution they created a sharp separation between religion and holding political office

Ratification of the Constitution From summer 1787 until they finished September 17,

1787, the convention worked on writing a new Constitution Under the rules of the Articles of Confederation all 13

states had to ratify a change for it to go into effect This was going to be difficult They ignored the rule and pretended they were starting from

scratch and created a new rule that said this new Constitution would go into effect when 9 of the 13 states ratified the new Constitution

How did they get away with this? Enough people were unhappy with the Articles of

Confederation government Large states (New York and Virginia) eventually ratified the

new Constitution

Ratification of the Constitution As part of the debate over ratification of the

Constitution an important set of arguments in favor of ratification were put forward in the Federalist Papers They were written by Hamilton, Madison and Jay 85 brief essays written to convince the state of New York

to vote in favor of the Constitution Most famous essays:

Essay 10: problem of political parties and interest groups Essay 51: importance of a system of checks and balances

The Federalist Papers are important because Provide insight into thinking behind

Constitution Sometimes used by Supreme Court

Ratification of the Constitution Federalists (pro) and Anti-federalists (con)

debated the merits of the new Constitution, as evidenced by the writings contained in the Federalist Papers

A promise add a Bill of Rights emerged as a concession to gain the required states for ratification (especially New York)

•The Bill of Rights restrains the national government by listing specific rights and liberties which citizens cannot be denied

•The Bill of Rights emphasizes the limited character of the national government’s power

Structure of the Constitution

One major change from the Articles of Confederation is that the Constitution begins “We the People” The Articles of Confederation began by

describing a “perpetual union between the states”

By appealing to “the People” the founders hoped to gain support for the new Constitution

Structure of the Constitution Seven major articles

Entire document is quite short First three articles cover the three branches

Article I Congress – detailed, main power of gov’t here Article II President – detail about election, rest short Article III Judiciary – short, just creates the Supreme Court, leaves rest up to Congress

Article IV covers relations between states Remaining articles short

Article V – amendment process, makes change difficult Article VI – supremacy clause and requires gov’t to honor debts, no religious test for office Article VII – 9 out of 13 rule for ratification

Article V Amendment Process

Proposal process 2 never used

Ratification process 2 only used once

Dilemmas of the Constitution

How to create a stronger national government to address problems of Articles of Confederation, without becoming tyrannical?

How to create a national government which would inevitably reduce the power of the states and still get it approved by the states?

Should the states be treated equally or not?

How could the founders get popular support for the constitution even though the founders did not trust the average person?

Representation: The Great Compromise Two approaches to Representation in the Congress

Virginia plan: Two Chambers, states represented by population in each chamber, so larger states would have more power

New Jersey plan: One Chamber, less change from Articles of Confederation, each state (large or small) would have equal representation

The Great Compromise Two Chambers (bicameral), House of Representatives states represented by

population Senate each states has the same representation (2

Senators)

Limiting Power: Separation of Power

Separation of Powers is the idea that each branch of government has specific responsibilities separate from the other branches

No person serves in two branches Followed in many state constitutions

Legislative Branch (Congress): Writes laws Executive Branch (President): Carries out laws Judicial Branch (Courts): Interprets laws

Each branch also has other responsibilities A Separation of Powers system is different from a

Parliamentary system where the executive is chosen from the legislature

Limiting Power: Checks and Balances

Checks and Balances is the idea that each of branch of government can limit the other two branches in some way Founders gave Congress many ways to check the President

(power of the purse, watchdog function, impeachment, power to declare war) because most concerned about tyrannical executive

The Supreme Court’s power to declare laws unconstitutional is not directly written in the constitution, was claimed by Supreme Court in 1803 case Marbury v. Madison

President can veto laws, appoint judges to Court, pardon those convicted of federal crimes

See chart (many different types of checks)

Slavery Founders allowed slavery

Many in north agonized over slavery, but few did anything – they expected slavery to “wither away”

Those from the south who depended on slave labor would not join the constitution if it outlawed slavery or diminished their power

Stain on constitution, led to decades of human misery and bloody Civil War

Compromise over slavery in Constitution Slaves counted as 3/5’s of a person for a state’s

representation in the House of Representatives, but slaves not allowed to vote

Northern states supposed to return Fugitive slaves The slave trade: said Congress could not end slave trade until

1808 (Congress did end slave trade 1808)

Electing the President and Vice President

Founders rejected the idea of popular election: did not trust average voters; founders were afraid of “mob rule”

Created the electoral college: a body of electors from states, chose President and Vice President by majority vote To start with most states had their legislature choose the

electors, today all states have electors chosen by the people Originally, electors did not cast separate ballots for President

and Vice President, but since 1804 they have This change was necessary to take account of parties

If no majority in the electoral college: President chosen by House from among the top three vote

getters (with each state having one vote) Vice President chosen by Senate from among the top two

vote getters (with each senator voting individually

Federalism: National or State Power? The founders wanted to set up a system that would give more

power to national government, but which would be approved by the states A unitary system would have been opposed by the states The confederal system before was too weak Developed the federal system: some power for states and some for

national government The specific or enumerated powers of the national gov’t are listed in the

section on Congress (Article I, section 8) In addition the end of Article I, section 8 states that the national government

has implied powers, which stretch the national gov’t power through the “necessary and proper” clause (sometimes called the “elastic clause”)

States have powers such as: choosing the President, ratifying amendments, 10th Amendment (not that effective)

Elections: Defer to the States

Rather than defining who could or could not vote, the founders left it up to the states to decide who was allowed to vote at the national level Again, because the founders distrusted average citizens

they set up a system that would continue the elite system in place at the state level

Most states required a person to have a certain amount of property to be allowed to vote

The constitution required that anyone who could vote for the state’s lower house be allowed to vote for national elections

But the constitution also allowed the Congress to change the rules for who was allowed to vote

Popular Rule The founders wanted popular support for a system that

limited popular rule Founders gave states the power to determine who could vote Which offices could people vote directly for?

Originally, only the House of Representatives In 1913 the 17th amendment was passed to allow people to vote directly

for their Senators Senators are also elected for 6-year terms with 1/3 elected every two

years, so takes 4 years to elect majority President chosen by electoral college Federal judges nominated by President, confirmed by Senate serve

lifetime appointments In general the system devised by founders does not respond

quickly to popular opinion

removed 1913

Interpreting the Constitution Interpreting the Constitution is not a simple exercise:

Because the founders tried to resolve many contradictory desires Because people have different interpretations about what the

founders intended Because people have different interests Because issues have developed which the founders could not

have imagined Different philosophies have developed for interpreting the

constitution: Living Constitution v. Original Intent Strict Construction v. Loose Construction Judicial Activism v. Judicial Restraint

Interpreting the Constitution Living Constitution and Loose Construction

are usually associated with liberals The idea that we have a living constitution is the

idea that the constitution was written in a different time and each generation interprets it for their time

To be able to interpret the constitution in this way requires loose construction of the words so they can be appropriate for today’s world

Liberals would support this view because it generally allows for more government action in the economic area and less government action in the private area

Interpreting the Constitution

Original Intent and Strict Construction are usually associated with conservatives Conservatives tend to support traditional

values and therefore try to interpret the constitution based on determining the original intent of the founders

To do this they use a strict construction of the words used in the constitution

In general this leads to less government involvement in the economic area and more support for traditional values in the private area

Interpreting the Constitution Judicial Activism v. Judicial Restraint

During the 1950’s and 1960’s there were a number of famous liberal Supreme Court decisions (such as Brown v. Board of Education (1954) ending segregation in schools, Miranda, etc…)

Conservatives opposed these decisions on the grounds that these judges were judicial activists, that the judges were substituting their liberal beliefs for a correct reading of the Constitution and taking the over the job of making policy from legislatures

Conservatives called for these judges to practice judicial restraint and not change the laws passed by the legislature

Because of this some conservatives have developed a belief that judicial activism is always liberal

But this is not the case, for example when conservatives brought a lawsuit to declare Obamacare unconstitutional, they were calling for conservative judicial activism

Interpreting the Constitution Who should interpret the Constitution? Until 1804 the President claimed, in his veto

message that by vetoing a law he was determining that it was unconstitutional

From 1804 after the Supreme Court decision in Marbury v. Madison the Supreme Court has interpreted the constitution But the Supreme Court is dependent on other

branches for carrying out its decisions Also the Supreme Court is aware of changing popular

opinion, so what you think about the Constitution also matters