US ConstitutionChapter 2

Constitution = supreme law of the United States

• Flag burning example:• Supreme Court of the United States (“SCOTUS”): Texas v.

Johnson: flag burning is protected First Amendment activity

• Congress: Flag Protection Act• SCOTUS: overrules FPA in US v. Eichman (FPA is

impermissible infringement upon free speech)

Decentralized power

• Checks and balances

• Stalemate vs. protection of minority views?

• Issues:• What does democracy mean if majority doesn’t always get

its way?• Should limits on scope of governmental action sometimes

prevent the action that the majority desires?

What is a constitution?

• “A nation’s basic law. It creates political institutions, assigns or divides powers in government, and often provides certain guarantees to citizens. Constitutions can be either written or unwritten [e.g., Great Britain].” -- p. 32, textbook

Origins of the US Constitution

• Passage of Declaration of Independence – treasonous act • 18th century colonies: Britain controlled foreign policy &

trade; colonists had discretion as to other matters• Britain increases taxation of colonies after it acquires large

tracts of land as a result of the French & Indian War• Colonists lack direct representation in British Parliament• Colonists protest (e.g., Boston Tea Party); Britain reacts

(e.g., blockade of Boston Harbor)

Continental Congress: Philadelphia, 1775-76

• Thomas Jefferson (VA)• John Adams (MA)• Benjamin Franklin (PA)• Roger Sherman (CT)• Robert Livingston (NY)

• Declaration of Independence: Jefferson

Declaration of Independence, 1776

• Polemic – political argument• Majority of D of I lists ways in which King George III

abused the colonies (Colonists contended that only the King – not Parliament – had authority over them)

• Written to garner foreign financial assistance (France)• Rooted in John Locke’s political philosophy• natural rights inherent in humans – such rights not

dependent upon govt. – life, liberty, property• consent of the governed• limited government

Locke’s proposed limitations on gov’t

• Governments must provide standing laws – advance notice to governed of what constitutes legal/unlawful actions

• Government cannot take one’s property without one’s consent

Declaration of Independence

• People should have primacy over governments; people should rule instead of be ruled

• Each person created equal and endowed with inalienable rights

• Consent of the governed, not divine rights nor tradition, makes the exercise of political power legitimate

American Revolutionary period

• Am. Rev. was essentially a conservative movement: did not drastically alter colonists’ existing ways of life

• Goal was to restore the rights colonists believed that they inherently possessed – no taxation with representation, protection of private property

Articles of Confederation, 1776

• First constitution created by committee established by Continental Congress

• Established state-dominated national government• “league of friendship and perpetual union” among the 13

states• One house national legislature; 2-7 delegates per state;

one vote per state• No national executive; no national court system• Fear of centralized government

Articles of Confederation

• Ratification required by ALL states, so not adopted until 1781 (Maryland last state to ratify)

• Problematic from the start: • Congress had no power to tax• Value of currency declined, became almost worthless• No power to regulate commerce, which inhibited foreign

trade and the development of a national economy

State laws/constitutions between 1776-1787

• Many states adopted bills of rights (which at that time applied only to white males):• Abolished religious qualifications for holding office• Liberalized voting requirement

• Resulted in beginnings of middle class (farmers, artisans become majority of populace)

• State constitutions concentrated powers in state legislatures – limited or non-existent state executives

Economic Turmoil: post-Am. Rev. period

• James Madison: Federalist # 10: Factions (special interests) arise from various and unequal divisions of property

• Post-war Depression: Economic issues become primary political agenda

• States attempt to assist small farmers

Shays’ Rebellion

• Shays leads series of armed attacks on courthouses to prevent judicial foreclosures (MA). Similar protests in other states

• Neither Congress nor state militia able to control Shays’ group (elites eventually fund private militia to quell the uprising)

Calls for changes to A of C

• 1786: meeting in MD to discuss problems with A of C – only 5 states send representatives (NY, NJ, DE, PA, VA)

• Results in petition to Continental Congress to convene Constitutional Convention

• Constitutional Convention set for Philadelphia, May 1787

Constitutional Convention, 1787

• Twelve states send delegates (RI – hold out)• Original purposes: amend Articles of Confederation• Group of 55 elite white males convene:• Mostly wealthy planters• Successful lawyers, merchants• Independently wealthy• Educated

Constitutional Convention

• Areas of agreement:• Human nature• Causes of political conflict• Objects of government• Nature of republican government

Const. Convention: Human Nature

• Thomas Hobbes, Leviathan (1651)• Strong govt. necessary to restrain human’s “bestial

tendencies”

• Delegates maintained cynical view of human nature: people as self-interested • Even diametrically-opposed Franklin and Hamilton agreed

upon this

• “Men love power.” -- Alexander Hamilton

Const. Convention: Political Conflict

• James Madison: the distribution of wealth is the source of political conflict

• Other sources of conflict:• Religion• Views of governing• Attachment to various leaders

• Factions (parties, interest groups) arise in response to these source of conflict• If left unchecked, factions will ultimately tyrannize each

other

Const. Conventions: Objects of Government

• Gov. Morris (PA): preservation of property should be government’s principle purpose• Lockean theorist

• Delegates were all property owners themselves• Government based upon economics: preservation of

individual rights to acquire and to hold personal wealth

Const. Convention: Nature of Government

• Tried to ensure that no one faction would overwhelm the others

• “Balanced” (limited) government: so long as no one faction may seize the whole of the government at once, tyranny can be avoided

• Checks and balances; separation of powers

Const. Convention

• Three overarching issues in crafting national govt.:

• Whether the states were to be equally represented• What to do about slavery• Whether to ensure equality in voting

Equality & representation of the states

• New Jersey Plan: states have equal representation• Virginia plan: population-based representation• CT compromise: Roger Sherman, William Johnson• Senate: two members from each state• House: population-based representation• Results in citizens in less populous states having greater say

in Senate-related issues (treaty ratification, confirm nominees, impeachment trials) and in choosing president if no majority in Electoral College (House of Representatives)

Discussions of Slavery at Constitutional Conv.

• 1787: Slavery legal everywhere but MA, but concentrated in South

• Delegates agreed Congress could limit future importing of slaves; did not forbid institution of slavery

• Slavery referred to in Constitution: persons legally “held to service of labour” who escaped to free states must be returned

Three-Fifths Compromise

• Constitution provided that representation in Congress and taxation were to be based upon the total number of free persons, plus three-fifths of the number of “all other persons.”

Equality in voting

• Framers allowed state election laws to determine who could vote nationally. People qualified to vote in state elections could also vote in national elections.

• (Universal suffrage for all free adult males is “too democratic” following events such as Shays’ Rebellion.)

Economic Issues

• Federalists:• Advocates of Constitution• Wanted strong, centralized government• Stressed economy’s weaknesses

• Anti-Federalists:• Opposed to Constitution• Feared strong, centralized government• Claimed that arguments regarding weaknesses of economy

were exaggerated

Economic issues

• Framers sought to address the following:

• States’ imposing tariffs on products from other states• Virtual worthlessness of paper money in many states• Congress’s troubles in raising money

Framers’ economic backgrounds

• Framers were primarily financially well-off, and all had interest in ensuring that economics was large focus of Constitution

• Some were aspiring capitalists• Some were creditors whose loans were being wiped out

by deflated paper money values• Many were merchants who could not properly conduct

trade with other states

Economic provisions of US Constitution

• Congress to be chief economic policymaker• Congress could obtain revenues via taxation and via

borrowing• Congress could appropriate funds• Congress could construct post offices, roads, establish

weights and measures (infrastructure)• Congress could protect property rights (punish

counterfeiters and pirates, issue patents and copyrights, legislate rules for bankruptcies)

• Regulation of interstate and foreign commerce

Other economic issues

• Prohibition on state practices that inhibited economic development:• Prohibited state monetary policies, duties on imports from other

states, interferences with lawfully-contracted debts

• States required to recognize and enforce each other’s civil judgments and contracts

• States to return runaway slaves to “owners” in other states• Constitution required national govt. to repay all public debts

incurred under Continental Congress & A of C -- $54 million• Encouraged growth of capitalism

Individual Rights

• Dispersal of power among the branches of government and between state and national government

• Most delegates thought states were adequately protecting individual rights, so Constitution says little about protecting rights

Individual Rights

• Prohibits suspension of writ of habeas corpus, except during times of invasion or rebellion. Under writ of habeas corpus, jailers must explain to judge why they are holding a prisoner in custody/detention (Art. I, § 9)

• Prohibits Congress and states from passing bills of attainder (punishing people without a trial) (Art. I, § 9)

• Prohibits ex post facto laws (punishing people or increasing penalties for act that were not illegal or not as punishable when act was committed) (Art. I, § 9)

Individual Rights

• Prohibits imposition of religious qualifications for holding office in national government (Art. VI)

• Defines treason (Art. III, § 3)• Requires right to trial by jury in criminal cases (Art. III, §

2)

Criticisms of Const. re: individual rights’

• Original Constitution does not protect free speech, does not grant full rights of accused

Madisonian Model

• James Madison: “Father of the Constitution”• Feared all factions, but especially majority’s potential to

oppress minority• Place as much of government as possible beyond direct

control of majority• Separate powers of different institutions• Construct system of checks and balances

Madison’s plan

• Place only one element of govt, House of Representatives, within direct control of votes of majority

• State legislatures to elect senators, who served for six years, with only 1/3 elected every two years

• Special electors to elect president• President to nominate federal judges, who served for life• Shared powers: judicial, legislative, and executive

branches

Checks & balances

• President checks Congress by holding veto power• Congress holds purse strings, approves presidential

nominees• President nominates judges but Senate must confirm• Judicial branch: power of judicial review (deciding

constitutionality of legislation, orders)• Marbury v. Madison (1803)• Not explicit in the Constitution

Federal system

• Powers divided between federal and state/local governments

• Framers anticipated that state/local involvement would “check” national government

Constitutional Republic

• Republic: system based on the consent of the governed, in which the representatives of the public exercise power• Results in incremental, if any, change• Encourages moderation and compromise• Difficult for majority or minority to tyrannize• Upholds property rights and personal freedoms

Ratification

• Constitution required ratification by 9/13 states• Federalists (supporters) v. Anti-Federalists (opponents)• Federalists specified that ratification be by special

conventions in each state (not by state legislatures)• Delaware first to ratify (1787);

Federalists

• James Madison, Alexander Hamilton, John Jay (“Publius”): The Federalist Papers (total of 85)

• Advocated for strong national government, weaker state governments; indirect election of officials; longer terms; government by the elite; expected few violations of individual liberties

Anti-Federalists

• Believed new government was enemy of freedom• Argued that Constitution was class-based document

intended to protect economic elite• Concerned about potential for erosion of personal

liberties (e.g., freedom of press not addressed)• Advocated for strong state governments, weak national

government; direct election of officials; shorter terms; rule by the common people; strengthened protections for individual liberties

Bill of Rights

• Anti-Federalists’ arguments about lack of protection for individual rights resulted in Federalists agreeing to add amendments to preserve individual liberties

• Bill of Rights: First Ten Amendments to Constitution (1789)

George Washington

• Unanimously elected first POTUS; took office on April 30, 1789 in New York City

Constitutional Change

• “Living document:” Constitution is constantly being tested and altered

• Formal amendments: provided for in Art. V• Proposal: either by 2/3 vote in each house of Congress or

by national convention called by Congress at request of 2/3 of state legislatures

• Ratification: either by legislatures of ¾ of states or by special state conventions called in ¾ of states

• Difficult to amend

Effect of Amendments

• Expansion of liberty and equality in the US

Informal process of Constitutional change

• Judicial interpretation• Political practice• As a result of changes in technology• As a result in changes in the demands upon policymakers

Judicial Interpretation

• Marbury v. Madison (1803): SCOTUS, under Chief Justice John Marshall, claims for the courts the power of judicial review – to declare whether acts of Congress and the President/executive branch are constitutional

Changing Political Practice

• Political parties (arose by 1800)• Electoral College• Constitution doesn’t require electors to vote for any

particular candidate but most vote in accordance with majority of voters in state’s general election

Technology

• Mass media: question governmental policies, support candidates, help shape citizens’ opinions

• Media plays a role now that would have been unimaginable in the 18th century

• Growth of bureaucracy in technological age• Electronic communications, development of atomic

weapons enhanced POTUS’s role as commander in chief

Growth of Power of Presidency

• Power of Presidency has grown as a result of increased demands for new policies• United States becoming a superpower in international

affairs• National security concerns result in more power to POTUS• Increased demands of domestic policy place POTUS in

more prominent role in preparing federal budget and in proposing legislative program

Importance of Flexibility

• US has the oldest functioning constitution in existence• Framers created a flexible system of government that

could adapt to needs of times without sacrificing personal freedom

• Even with 27 amendments, Constitution is very short document (not extremely detailed)

Understanding the Constitution

• Review:• Democratic government was despised and feared among

eighteenth century upper-class society• Constitution created a republic, a representative form of

government modeled after the Lockean tradition of limited government

• One of the central themes of US history is the gradual democratization of the Constitution, away from the elitist model of democracy and toward the pluralist model

Constitution and scope of government

• Separation of powers, checks and balances allow almost all groups some place in the political system where their demands for public policy may be heard

• Separation of powers, checks and balances also promote politics of bargaining, compromise, playing one institution against another, and increase of hyperpluralism• Some scholars suggest that so much “checking” was built in

to system that effective government is nearly impossible (gridlock)

• Outcome may be non-decisions