The United States Constitution Roots, Rules, Reach

Roots – ideological foundations

• English political culture• “English Constitution”

• Magna Carta• Petition of Right • English Bill of Rights• judicial interpretations and precedent

• American political culture• “egalitarianism” – land of no nobles… sort of…;

experiences of the Revolutionary War• limited government (“no taxation w/o representation)• Enlightenment writers

• John Locke – Two Treatises of Government• Baron de Montesquieu – The Spirit of the Laws• Jean-Jacques Rousseau – The Social Contract• Thomas Paine – Common Sense

Declaration of Independence

• 2nd Continental Congress picks Thomas Jefferson

• Locke-ed in• natural, “unalienable” rights

• “life, liberty, pursuit of happiness”

• “consent of the governed”• right to revolt

• “popular sovereignty”• “self-evident” natural rights

• “egalitarianism”• “all men are created equal”

6 key themes of the US Constitution

• Limited Government• constraints on the use of power by the national gov’t

• Republicanism• consent of the governed – legitimacy rooted in popular consent

• Checks and Balances• barriers to tyranny – no one gov’t body dominates

• Federalism• power diffused across national / state levels

• Separation of Powers• 3 branches with some powers independent of others

• Popular Sovereignty• natural rights of individuals are protected

From Articles of Confederation to the Constitutional Convention

• A of C a loose confederation with sovereign states• “league of friendship” degenerates into bad neighbors• Economic Turmoil

• depression left farmers unable to pay debts• legislatures sympathetic to farmers and passed

laws that favored debtors over creditors• Annapolis Convention (Sept. 1786) no shows• Shays’ Rebellion

• Series of attacks on courthouses by a small band of farmers looking to block foreclosures

• Economic elite concerned about Articles’ inability to protect property rights

• reluctant reps agree to go to Philly after Shays

Who goes to Philly

• 55 men from 12 of the 13 states• Mostly wealthy planters and merchants• Most were college graduates with some

political experience• Many were coastal residents from the

larger cities, not the rural areas• Self interest? Not so much… Protections of

privileged power? You bet!• Notable absences – TJ, John Adams, Patrick

Henry

Big Wigs

G-Dubs

Jimmy Mads

Pickney PatersonBFF

HamiltonWilson

Morris

Randolph

Major arguments and hurdles at CC

• Representation• NJ vs VA Plans• “Great” (Connecticut) Compromise

• Slavery• indirectly address / passes the buck

• Economics• strong role for national government

agreed upon, but just how strong???• “Necessary and Proper” -

Parts of the Constitution

• Preamble• “mission statement”; 6 goals

• Articles• Shape of branches (1,2,3); relations between

states in the federal system (4); amending (5); “supremacy” clause, assuming debts, no religious test (6); ratifying process (7)

• Amendments• 27; 1st 10 pass in 1st Congress (Bill of Rights)

Ratification Debates

- The Federalist Papers outline Federalist arguments- Federalist advantage: they have a plan, and are organized

Bill of Rights

1st: Freedom of: religion, speech, press, assembly, petition2nd: Right to bear arms3rd: No quartering of troops4th: Freedom from illegal search and seizure5th: Due Process: right to remain silent 6th: Right to speedy trial, confront witnesses, attorney7th: Right to jury trial in civil trial if more than $208th: Protection from cruel and unusual punishment9th: All rights stated are not complete10th: Federalism: states rights

Marbury v Madison – judicial review

• Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution.

• Strikes down aspects of the Judiciary Act of 1789 and states that “it is emphatically the province and duty of the judicial department to say what the law is” – C.J. John Marshall

The Constitution and “Democracy”

• The Constitution is rarely described as democratic.• There has been a “gradual” democratization of

the Constitution.

• The Constitution and the Scope of Government• Much of the Constitution (with amendments)

reinforces individualism and provides multiple access points for citizens.

• It also encourages stalemate and limits government… to some Founders’ satisfaction

A “Living” Constitution?

• The Constitution is short, with fewer than 8,000 words - It does not prescribe every detail.• There is no mention of congressional committees,

a Cabinet, or independent regulatory commissions; of interstate highways, email servers, or “genetic” rights…

• The Constitution is not static, but “flexible” for future generations to determine their own needs… but what does “flexible” mean? More to come on that one…