The U.S. Constitution: History, Foundations,

and Structure

Notes from Fiorina, Peterson, Johnson, and Voss

Colonial and Revolutionary Era

Key terminology Divine right Mayflower Compact Proprietary colonies Colonial assembly / colonial council Patronage Stamp Tax of 1765 Stamp Tax Congress

Key terminology continued… First Continental Congress Second Continental Congress Tories Theory of Rights and Representation

Government by consent of the governed (Hobbes) Separation of powers (Montesquieu and Locke) Protection of basic rights/liberties (Whigs, Harrington,

and Paine)

Key terminology continued Separation of powers / checks and balances Federalism Whigs Articles of Confederation Shay’s Rebellion Annapolis Convention Virginia Plan, New Jersey Plan, Connecticut Compromise Necessary and Proper Clause (Art, I, Section 8 of Const.) Electoral College

Key terminology continued: Judicial review Supremacy Clause (Article VI of Constitution) Three-fifths compromise Bill of Rights

Government After Independence

Democratic tendencies grow during the 7 years of the Revolutionary War Expansion of the franchise (% of people able to vote

increases) 8 states ease property restrictions for voters 5 states ease property restrictions for election to lower

house of legislature 10 states began electing governors each year; 6 states

placed term limits on governors

Whig theory of government (rights and representation) Key figure: James Harrington Encouraged extending franchise [ Note: this includes

women, and, ultimately slaves and non-property owners] and citizen control over government

Expressed in Paine’s Common Sense (written before the Declaration of Independence)

Monarchy is corrupt Representative government is best Decentralization of power is essential to liberty

Articles of Confederation (1781-1789) Created by the Continental Congress Each retains essential sovereignty, independence No power to raise an Army or Navy No power of taxation Each state issued its own currency Each state could conduct trade negotiations with other countries

and set trade policy with other states (including trade barriers such as tariffs)

Equal representation among the states Members elected each year by their state legislatures 9/13 states needed to pass most legislation Continental Congress had all power – no separation of

authorities (as Locke had suggested), states dealt with all judicial matters

Key moment: Shay’s Rebellion Uprising in Massachusetts in 1786, debtor farmers tried to

keep banks from foreclosing Highlights weakness of state governments (uprising took

several months to suppress)

Other concerns British Navy impressed American citizens Britain disputes boundary between U.S. and Canadian

colonies France blocks U.S. trade plans in West Indies

Take a closer look:

Articles of Confederation (1781-1789) Structure http://www.usconstitution.net/articles.html#Article1Weaknesses

Comparing the Articles of Confed. to the U.S. Constitution (1789-present) http://www.usconstitution.net/constconart.html

- see also Table 2.3 in FPJV text (p. 40)

Drafting / Adopting a New Constitution

Constitutional Convention 1786 – Annapolis Convention, meeting to discuss

problems with Articles of Confed. Only 5 states send delegates

Later in 1786 – Madison convinces state (w/ exception of Rhode Island) to send delegates to Philadelphia to revise the Articles of Confederation

Convention meets for 4 months

Key dispute: representation in the new Congress Virginia Plan (favored by large states) New Jersey Plan (favored by small states) Connecticut Plan (compromise position)

Key features of new Constitution Separation of powers (“horizontal division of power)

Congress’s powers in Article I (see especially, Article I, section 8, clauses 1-18) [Appendix II of textbook] Important provision – clause 18 (the necessary and proper clause)

Executive’s powers in Article II Alexander Hamilton proposed idea of lifetime executive (idea

rejected as too similar to monarchy) Selection of the president – the Electoral College (a compromise

position) Key years – 1824, 186, 1888, 2000 !!

Judiciary – Article III Article III creates the U.S. Supreme Court Congress created the lower federal courts Judicial review

Discussed at Convention Constitution is silent on this matter Article VI – Supremacy Clause is important Marbury v. Madison (1803) – does not create the power

of judicial review, but signals Court’s authority to exercise this power

Federalism (“vertical division of power”) Division of powers between national and state

governments Ultimate effect: protecting the liberties of individual citizens

[from Federalist 51: “In the compound republic of America, the power surrendered by the people is fist subdivided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people.”

10th Amendment reserves to the states all powers not delegated to the national government

Contrast with confederation (where regional government surrender some power to a weaker central government)

The problem of slavery Compromise position – international slave trade

would not be abolished for 20 years after the Convention (Congress acts in 1808)

3/5 compromise – addresses dispute between Northern and Southern delegations over issue of slave representation in Congress 1865 - 13th Amendment ends slavery 1868 – 14th Amendment undoes 3/5 clause

Bill of Rights [Amendments 1-8 (or 10)] Important foundations – Whig theory of rights

Evident in Declaration of Independence Virginia assembly recognizes many individual liberties State constitutions recognized many basic liberties Jefferson’s (in Paris) letter to Madison urging the adoption

of a Bill of Rights Adopted in 1791 by the first Congress

N. Carolina and Rhode Island did not ratify Constitution until Bill of Rights were added

At their origins, applied only to the federal government; later applied to the states (process known as incorporation)

The Federalist Papers and the Bill of Rights Federalist 84 (Hamilton)

Constitution as prepared by the convention is sufficient – it is, in and of itself, a bill of rights Examples: prohibition on bills of attainder; prohibition on ex

post facto laws; prohibition on titles of nobility Bill of Rights could be dangerous “They would contain

various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”

Anti-Federalist argument Deeply rooted in the Whig theory of rights and

representation Feared shift of power away from states toward the

central government Believed that Congress was too small to

represent people from all corners of the country

The Federalists Madison, Hamilton, Jay – The Federalists Papers A few of their key concerns

(1) threat of external invasion Answer: form a strong national government capable of defending

the U.S. (2) Tyranny (of the majority? Factions?)

Answer: form a representative democracy and a large nation with many different groups with different interests

Answer: separation of powers (w/ checks and balances) will prevent tyranny, protect individual liberties

Answer: adopt a federal form of government – division of powers between state and national governments

Constitutional Amendments

How to amend the document? Small states’ argument – unanimous consent of state

legislatures Large states’ argument – reject unanimity of consent

approach Compromise position – Figure 2.3

Two points of origin Two routes to ratification

Most common approach (26 times) – 2/3 vote in both houses of Congress, followed by ratification by 2/3 of state legislatures

The Amendments 27 as of today Which amendments (after Bill of Rights) increase the size

of the electorate, tightening the connection between citizens and government, and enhancing civil liberties? Amend 13, 14, 15 (Civil War Amendments) Amend 17 – direct election of senators Amend 22 – two term limits on Presidents Amend 23 – D.C. residents get presidential suffrage Amend 24 – abolishes poll taxes Amend 26 – lowers voting age to 18