Constitutional Foundations:Institutions & Compromises
Barbour and Wright, Chapter 2
Wednesday, February 11, 2009
Purpose of Government• All governments must have power to:
• Legislate, or make laws
• Administer, or execute laws
• Adjudicate, or interpret laws
• Who had these powers under the English system?
• Who had these powers under the Articles of Confederation?
Wednesday, February 11, 2009
Constitutional Crafting• Delegates to the convention
represented varying ideals, values, goals and interests
• The process of crafting the Constitution was a series of compromises between varying interests
• Virginia Plan vs. New Jersey Plan
• Recognition that the document wasn’t perfect, but still served founders’ democratic ideals
Wednesday, February 11, 2009
Separation of Powers
• “Government should be set up so that no man need be afraid of another” —Baron de Montesquieu
• Cannot have single person or body exercising all three powers of government in case of corruption
• In practice, total separation is not possible, however; this principle is key to the US Constitution
Wednesday, February 11, 2009
Checks and Balances
• Allows each of the branches to police the others—checking abuses and balancing powers
• What are some examples of checks and balances built into the Constitution?
• Results in a totally new system of government in which no branch can act independently, yet none is wholly dependent either
Wednesday, February 11, 2009
Issue: Sovereignty
• Under Articles of Confederation, states held the ultimate legal and political authority
• Many delegates only wanted minor revisions to the Articles to preserve state sovereignty
• New Jersey Plan
• Why were states’ rights so important to early Americans?
Wednesday, February 11, 2009
Compromise: Federalism• Under federalism, the people are sovereign and
their contract with the government is the Constitution
• The Constitution grants a national government its own source of power while also reserving some powers solely for the states
• Federalism also serves as an additional vertical check and balance on governmental power
• Federalists vs. Anti-federalists
Wednesday, February 11, 2009
Legislative Branch
• Role in government is to legislate or create laws
• Even with checks and balances, Madison’s notes show that most delegates intended for the legislative branch to be the most powerful
• Why?
Wednesday, February 11, 2009
Issue: State Representation
• Delegates from small states wanted 1 state, 1 vote
• New Jersey Plan
• Delegates from large states wanted the representation to be proportional to population
• Example pg. 52
Wednesday, February 11, 2009
Compromise:Bicameralism• Two houses of legislative branch (Congress)
• House of Representatives
• Determined by state population giving large states greater representation
• Senate
• Each state allotted only two, giving small states greater representation
• Key: Most legislation requires approval of both houses so large & small states have to work together—check/balance
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Issue: Counting Population
• Need to determine population in order to allot House of Representatives seats
• African Americans accounted for nearly 1/4 of population
• Southern states want to count slaves in the population, but have no intention of letting them vote
• Why did they want to count slaves?
• Northern states had far fewer slaves and argued they should only count if they got to vote
Wednesday, February 11, 2009
Compromise: 3/5ths
• Although Constitutional language is vague, it essentially meant that non- free persons would count as three-fifths of a person—or 3 out of 5 would be counted
• Delegates did not tackle issue of slavery head-on
• Why not?
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Issue: Congressional Election
• Direct democracy is not possible; delegates forming a republic, a representative democracy
• Direct Election: Congress should be most powerful branch and closest to the people to reflect their diversity
• Leads to more accountability and greater confidence
• Other method of selection e.g. state legislatures
• Voters have inadequate information, can be duped
• Direct election not practical
Wednesday, February 11, 2009
Compromise: Bicameralism
• House of Representatives directly elected by the people
• Greater numbers = more diversity
• Shorter terms (2 years) = more accountability
• Senate to be selected by State Legislatures
• More deliberative, non-reactive
• Nod to states’ rights
Wednesday, February 11, 2009
Executive Branch• Role is to execute and administer the laws
• Delegates fearful of a strong executive
• Don’t want to create a monarch or dictator
• Some delegates wanted multiple executive-power spread out
• New Jersey Plan
• Others want a single executive-more efficient
• Virginia Plan
• Issues over how best to limit president’s power
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Issue: Limit Executive Power• Delegates settled on a single executive but built in checks
on his power
• Madison: “Confine and define” executive power
• Completely new position: republican executive
• Compromise: Limit power with 4-year terms
• Compromise: Advice and consent of Senate in appointments
• Compromise: No power to declare war
• Compromise: Add vice president in case of emergencies
Wednesday, February 11, 2009
Issue: Presidential Selection
• Some delegates advocating for direct election
• Accountability, more democratic
• Other delegates support alternative methods of selection
• State Legislatures
• Congress (parliamentary-type system)
• States divided into voting districts, select electors
• Why not direct election?
Wednesday, February 11, 2009
Compromise: Electoral College
• Each state alloted number of electors equal to the number of Congressional seats
• Ex. Ohio: 11.4 million people = 20 EVs Ex. Idaho: 1.3 million people = 4 EVs
• States determine how electors function
• Winner take all, electors legally bound
• Winner take all, electors not legally bound
• EVs split proportionally or otherwise
Wednesday, February 11, 2009
Issue: Presidential Veto• Veto is president’s power to
override Congress
• Some want absolute veto
• Some want Council of Revision
• Some want no veto power
Compromise: Limited veto; Congress can overturn with 2/3 vote—more checks/balances
Wednesday, February 11, 2009
Judicial Branch
• Role is to interpret laws and judge whether they have been broken
• Constitution is brief and vague
• Establishes Supreme Court and leaves inferior courts up to Congress
• Later case law allows for judicial review
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Issue: National Judiciary
• New Jersey Plan called for no national court system, but a continuation of the state courts as under Articles of Confederation
• Virginia Plan calls for a national judiciary only
• Compromise: Federalism
• Federal judiciary establishes a national court system while still allowing for state and local courts
Wednesday, February 11, 2009
Issue: Judicial Appointment
• Some delegates argued that the president should be responsible for selecting judges
• He would be held to greater accountability for bad choices
• Others thought judges ought to be selected by Congress
• Too much power to give to a single executive
• Compromise: President selects judges, must be voted upon by the Senate
Wednesday, February 11, 2009
Issue: Amendments• Some delegates wary of Constitution because provisions
in Bill of Rights were not included
• Others argue Bill of Rights not necessary, even harmful
• Compromise: Provisions for amending the Constitution
• Proposed by 2/3 vote of Congress or a national convention called at the request of 2/3 of state legislatures
• Approved by 3/4 of state legislatures or ratifying conventions of 3/4 of states
Wednesday, February 11, 2009
Federalists & Anti-federalists
• Effort to make the Constitution as broadly appealing as possible
• Federalists want to account for human propensity for selfishness and corruption; need for larger government
• Anti-federalists want smaller government that will be more accountable and less corruptible
• Series of essays written by both sides arguing the merits and faults of the Constitutional system
Wednesday, February 11, 2009
Ratification• Needed 9 states (3/4) to ratify the Constitution
• Delaware, New Jersey, Georgia vote for unanimously
• Connecticut, Pennsylvania, Maryland, South Carolina strongly support
• Massachusetts, Virginia, New Hampshire, New York ratify narrowly
• North Carolina fails to ratify; later ratifies
• Rhode Island refused to call a convention; later ratifies
Wednesday, February 11, 2009
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