Chapter Two

The Constitution

Discuss Readings

• As a class discuss the reading from yesterday by Roche.

The Founding Fathers:A Reform Caucus in Action

• John P. Roche suggests that the framing of the Constitution was essentially a democratic process involving the reconciliation of a variety of state, political, and economic interests

Framers Were Politicians

• Roche writes: "Perhaps the time has come, to borrow Walton Hamilton's fine phrase, to raise the framers from immortality to mortality, to give them credit for their magnificent demonstration of the art of democratic politics. The point must be reemphasized: they made history and did it within the limits of consensus."

Constitutional Convention

• Roche writes that "the Philadelphia Convention was not a College of Cardinals or a council of Platonic guardians working in a manipulative, pre-democratic framework;

• it was a nationalist reform caucus that had to operate with great delicacy and skill in a political cosmos full of enemies to achieve one definitive goal, popular approbation.”

The Framers as a Political Elite

• Roche recognizes that the framers, collectively, were an elite, but he is careful to point out that they were a political elite dedicated for the most part to establishing an effective and at the same time controlled national government that would be able to overcome the weaknesses of the Articles of Confederation.

Framers Were Not a Conspiratorial Economic Elite

• The framers were not, says Roche, a cohesive elite dedicated to a particular set of political or economic assumptions beyond the simple need to create a national government that would be capable of reconciling disparate state interests.

• Roche contrasts with Beard who viewed the Framers an economic elite out to protect their personal property.

Roche on The Constitutionalists

• When the Constitutionalists went forth to subvert the Confederation, they utilized the mechanisms of political legitimacy. And the roadblocks which confronted them were formidable. At the same time, they were endowed with certain potent political assets.

• The history of the United States from 1786 to 1790 was largely one of a masterful employment of political expertise by the Constitutionalists as against bumbling, erratic behavior by the opponents of reform. Effectively, the Constitutionalists had to induce the states, by democratic techniques of coercion, to emasculate themselves

Constitutionalists Persuasion

• The great achievement of the Constitutionalists was their ultimate success in convincing the elected representatives of a majority of the white male population that change was imperative.

• A small group of political leaders with a Continental vision and essentially a consciousness of the United State, international impotence, provided the matrix of the movement.

Constitutionalist's Assets

• Their great assets were (1) the presence in their caucus of the one authentic

American "father figure," George Washington, whose prestige was enormous;

(2) the energy and talent of their leadership (in which one must include the towering intellectuals of the time, John Adams and Thomas Jefferson, despite their absence abroad),

(3) and their communications "network," which was far superior to anything on the opposition side

Conclusion

• John Roche's article on the framing of the Constitution was written as an attack upon a variety of views that suggested the Constitution was not so much a practical political document as an expression of elitist views based upon political philosophy and economic interests [Charles Beard].

Data Analysis• Suppose you had a chance to design a

political system. – What sort would you design?

– What would you value in your political system?

• Look at the following statements and circle a or b.

Discuss

• Are the preferences of the majority of this class the same as those of the founders, or would the class prefer a very different sort of political system?

• How would you have to change the Constitution to produce a political system closer to what members of the class say they want?

The American Revolution

• The goal of the American Revolution was Liberty.

• Many colonists believed that they would have to become independent to achieve this.

The Problem with Liberty• The colonial mind

– Belief that because British politicians were corrupt and the English constitution was inadequate.

– Belief in higher law of natural rights• Life• Liberty• Property (everyone owned property)

– John Dickerson wrote: “these rights are born with us, exist with us, and cannot be taken away from us by any human power.”

– A war of ideology, not economics– Declaration of Independence:

• “All men are created equal” “right to overthrow a government”.• Then specific complaints against King George III for violating unalienable rights,

that is based on nature, are written.

The “Real" Revolution

• In what ways was the revolution at a larger scale than just breaking away from Great Britain?

• The "real" revolution was the radical change in belief about what made authority legitimate and liberties secure.– Government by consent, not by prerogative.

– Direct grant of power: written constitution.

– Human liberty before government.

– Legislature superior to executive branch.

Weaknesses of the confederation• Could not levy taxes or regulate commerce• Sovereignty, independence retained by states• One vote in Congress for each state• Nine of thirteen votes in Congress required for any measure• Delegates picked, paid for by legislatures• Little money coined by Congress• Army small; dependent on state militias• Territorial disputes between states• No national judicial system• All thirteen states' consent necessary for any amendments

Read • The Political Philosophy of the Founders.• Discuss:

– Why if one is concerned with protecting human liberty, would one want to make the legislative branch of government so dominant?

– Could not the courts be a better protector of individual rights?

– Could not the president?– Are there reasons that a person who values personal

liberties would fear a strong executive branch?– A powerful judiciary?

Question?

• Is Liberty most often threatened by…– Powerful political elites who escape public

control?– A majority intent on imposing its will on a

minority?– Which of these cases would lead one to favor a

strong Legislative Branch?

The Constitutional Convention

• The lessons of experience:– State constitutions

• Pennsylvania: too strong, too democratic

• Massachusetts: too weak, less democratic

– Shays's Rebellion • led to the fear the states were about to collapse.

The Constitutional Convention

• The Framers– Who came

• Young men, men who signed the declaration of independence, governors, lawyers, and wealthy.

– Intent to write an entirely new constitution– Lockean influence– Doubts that popular consent could guarantee liberty– Results: "a delicate problem"; need strong government for

order but one that would not threaten liberty• Democracy of that day not the solution• Aristocracy not a solution either• Government with constitutional limits no guarantee against tyranny

The Constitutional Convention

• The challenge– The Virginia Plan

• Design for a true national government• Two houses in legislature• Executive chosen by legislature• Council of revision with veto power

– Two key features of the plan• National legislature with supreme powers• One house elected directly by the people

The Constitutional Convention

• The New Jersey Plan– Sought to amend rather than replace the Articles.

– Proposed one vote per state.

– Protected small states' interests.

• The Great Compromise– House of Representatives based on population.

– Senate of two members per state.

– Reconciled interests of big and small states.

Homework

• Find something, an article ect., on popular sovereignty tonight and be able to discuss it in a group tomorrow.

Discuss in Groups

• Popular Sovereignty

Popular Sovereignty

• Popular sovereignty or the sovereignty of the people is the belief that the legitimacy of the state is created by the will or consent of its people, who are the source of all political powerr.

• It is closely associated to the social contractt philosophers, among whom are Thomas Hobbess and John Locke.

• Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality. It is often contrasted with the concept of parliamentary sovereigntyy, and with individual sovereignty.

• Benjamin Franklin expressed the concept when he wrote, "In free governments, the rulers are the servants and the people their superiors and sovereigns.”

Framing the Constitution Charles A. Beard

•Beard suggests that the Constitution was nothing more than the work of an economic elite that was seeking to preserve its property.

• This elite, according to Beard, consisted of landholders, creditors, merchants, public bondholders, and wealthy lawyers. Beard demonstrated that many of the delegates to the convention fell into one of these categories.

Goal to Limit Popular Majorities

• According to Beard’s thesis, as the delegates met, the primary concern of most of them was to limit the power of popular majorities and thus protect their own property interests.

• To Beard, the anti-majoritarian attributes that he felt existed in the Constitution were a reflection of the less numerous creditor class attempting to protect itself against incursions by the majority.

Constitution Protects Property

• Specific provisions as well were put into the Constitution with a view toward protecting property, such as the clause prohibiting states from impairing contracts, coining money, or emitting bills of credit.

• Control over money was placed in the hands of the national government, and in Article VI of the Constitution it was provided that the new government was to guarantee all debts that had been incurred by the national government under the Articles of Confederation.

Beard v. Roche

• Ironically, Beard, like Roche, was attempting to dispel the prevailing notions of his time that the Constitution had been formulated by philosopher kings whose wisdom could not be challenged.

• But while Roche postulates a loosely knit practical political elite, Beard suggests the existence of a cohesive and even conspiratorial economic elite.

• The limitation on majority rule was an essential component of this economic conspiracy.

Evidence Does Not Support Beard

• Beard’s thesis was startling at the time it was published in 1913. As it came under close examination, it was revealed that the evidence simply did not support Beard's hypothesis.

• Key leaders of the convention, including Madison, were not substantial property owners. Several important opponents to ratification of the Constitution were the very members of the economic elite that Beard said conspired to thrust the Constitution upon an unknowing public.

The Constitution and Democracy• Founders did not intend to create pure

democracy– Physical impossibility in a vast country– Mistrust of popular passions– Intent instead to create a republic with a system

of representation

The Constitution and Democracy

• Popular rule only one element of the new government– State legislators to elect senators– Electors to choose president– Two kinds of majorities: voters and states– Judicial review another limitation

• Marbury vs. Madsion

– Amendment process

• Key principles– Separation of Powers– Federalism

Electoral College

The Electoral College

• Article II, Section 1, Clause 2 of the Constitution specifies how many electors each state is entitled to have and that each state's legislature decides how its electors are to be chosen.

• Since 1964, there have been 538 electors in each presidential election.

• Number of electors for each state is equal to the number of senators and representatives in a state.

• The Twelfth Amendment provides for each elector to cast one vote for President and one vote for Vice President.

Discuss

• How did the original concept of the electoral college reflect the Founders distrust of democracy?

Amendment Process

Separations of Powers

The Constitution and Democracy• Government and human nature

– Aristotelian view: • government should improve human nature by cultivating virtue

– Madisonian view: • cultivation of virtue would require a government too strong, too dangerous;

self-interest should be freely pursued

– Federalism enables one level of government to act as a check on the other.

• The Constitution and liberty• Whether constitutional government was to respect personal

liberties is a difficult question; ratification by conventions in at least nine states a democratic feature but a technically illegal one

The Constitution and Democracy• The Antifederalist view:

– Liberty could be secure only in small republics.• In big republics national government would be distant from

people.• Strong national government would use its powers to annihilate

state functions.

– There should be many more restrictions on government.– Madison's response: personal liberty safest in large

("extended") republics• Coalitions likely more moderate there• Government should be somewhat distant to be insulated from

passions

The Constitution and Democracy

• Reasons for the absence of a bill of rights– Several guarantees in Constitution

• Habeas corpus• No bill of attainder• No ex post facto law• Trial by jury• Privileges and immunities• No religious tests• Obligation of contracts

– Most states had bills of rights.– Intent to limit federal government to specific powers

The Constitution and Democracy

• Need for a bill of rights– Ratification impossible without one– Promise by key leaders to obtain one– Bitter ratification narrowly successful

The Constitution and Slavery• Slavery virtually unmentioned• Apparent hypocrisy of Declaration signers• Necessity of compromise: otherwise no

ratification– Sixty percent of slaves counted for representation.

– No slavery legislation possible before 1808

– Escaped slaves to be returned to masters

• Legacy: Civil War, continuing problems

The Motives of the Framers

• Acted out of a mixture of motives; economic interests played modest role

• Economic interests of framers varied widely– Economic interests of Framers varied widely

– Beard: those who owned governmental debt supported Constitution

– However, no clear division along class lines found

– Recent research: state considerations outweighed personal considerations; exception: slaveholders

The Motives of the Framers

• Economic interests and ratification– Played larger role in state ratifying conventions

– In favor: merchants, urbanites, owners of western land, holders of government IOUs, non-slave owners

– Opposed: farmers, people who held no IOUs, slave owners

– But remarkably democratic process because most could vote for delegates

– Federalists versus Antifederalists on ideas of liberty

The Motives of the Framers

• The Constitution and equality– Critics: government today is too weak

• Bows to special interests

• Fosters economic inequality

• Liberty and equality are therefore in conflict

– Framers more concerned with political inequality; weak government reduces political privilege

Discuss

• Why was the philosophy of President Reagan that, “the governments to big”, so popular?

• Do you agree with this statement, why or why not?

Homework

• Separations of Powers

Constitutional Reform--Modern Views• Reducing the separation of powers to enhance national

leadership– Urgent problems remain unresolved– President should be more powerful, accountable, to produce

better policies– Government agencies exposed to undue interference– Proposals

• Choose cabinet members from Congress• Allow president to dissolve Congress• Empower Congress to require special presidential election• Require presidential/congressional terms• Establish single six-year term for president• Lengthen terms in House to four years

Constitutional Reform--Modern Views

• Contrary arguments: results uncertain, worse– Making the system less democratic

– Government does too much, not too little

– Attention to individual wants over general preferences

• Proposals

• Limit amount of taxes collectible

• Require a balanced budget

• Grant president a true line-item veto

– Narrow authority of federal courts

Constitutional Reform--Modern Views

• Contrary arguments: unworkable or open to evasion

– Who is right?– Decide nothing now

• Crucial questions• How well has it worked in history?• How well has it worked in comparison with other

constitutions?