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Chapter 2: The Constitution

The Problem of Liberty The signers of the Declaration of Independence sought to protect their liberties to which they believed they were entitled as (former) British subjects At the start of agitation prior to the war, most colonists believed that the English constitution, a collection of laws, charters, and traditions, would protect their liberties as British subjects But by 1775 and war, many believed that they would have to separate to assure their liberties Many colonists believed that the English government was corrupt, ambitious, and greedy The liberties that were fought for were believed to be natural rights based in higher law as ordained by God (unalienable rights); the essentials were life, liberty, and property (Jefferson just changed it to pursuit of happiness) At the time, most colonists, excluding black slaves, owned property The war was fought for the most part for ideological reasons, and few benefited financially; most colonists were self-employed farmers or artisans, taxes became higher, trade was disrupted, and debts increased The Declaration of Independence, written by Jefferson, consists of a philosophical preface followed by a list of specific complaints against King George III the English government

The Colonial Mind

The Real Revolution John Adams described the real revolution as the radical change in the principles, opinions, sentiments, and affectations of the people that went on before, during, and after the war Radical new principles for the basis of government: Its legitimacy required the consent of the governed and not royal right Its power was directly granted by a written constitution and not by tradition It must respect human liberty The legislative branch should be more powerful than the executive branch, because the people were directly represented in the legislative branch Many Americans believed that such a government could not succeed because it would either be too strong for allow liberty or too weak to prevent chaos By a few years after 1776, all but two states had adopted written constitutions, most of which had elected representatives in the highest positions and had bills of rights defining personal liberties The war (1776-1787) was a shaky beginning for the country; military and government were barely organized, much of the country was in ruins, paper money became almost worthless, and the British and Spanish remained North American powers Weaknesses of the Confederation 1781 the Articles of Confederation created a weak league of friendship between the independent and sovereign states Government could not levy taxes or regulate commerce, and there was no national judicial system Congress could make peace, coin money, appoint important army officers (though the

small army depended on independent state militias), and run the post office Each state had one vote in Congress, 9/13 votes were needed to pass a measure, all votes were needed to make and amendment to the Articles and state legislatures picked the delegates John Hancock was appointed president, but was a pointless office, and he never showed up Several stated claimed western lands, PA and VA fought each other, and VT threatened to join Canada The Constitutional Convention The Constitutional Convention meet in order to revise the Articles, but ended up writing a new constitution altogether James Madison, after studying governments throughout history, concluded that historical examples only show what not to do, because they were all either too strong for liberty or too weak to resist collapse from internal conflict The Pennsylvania state constitution was an example of one that made too strong a government: Was the most radically democratic, a unicameral legislature held all power, and there was a weak Executive Council but no governor Was supported by much of France and Thomas Paine, but disfranchised the Quakers, persecuted those who opposed the war, didn't always have trial by jury, and had too strong influence over the judiciary The Massachusetts state constitution was an example of one that made too weak a government; had clear separation of powers, governor could not veto, judges served for life, voters and elected officials had to own property, and important officeholders had to be Christian January 1787 in Shays's Rebellion some ex-soldiers and officers forcefully kept western MA courts from sitting because they had high debts and taxes and didn't want their property taken away; a privately-funded volunteer army had to be raised to dispel them because the Continental Congress was too weak to raise one The rebellion sparked fears that state governments would collapse from internal conflict, ex. George Washington; however, Jefferson believed it was no biggie, and NY governor George Clinton believed no strong central government was needed The Convention, held in Philadelphia, was attended by thirty participating delegates (RI refused attendance) who were young but experienced, usually not wealthy, and not intellectuals, and who swore to keep their discussions secret The debate was not always lofty and rarely drew on leading political philosophers English philosopher John Locke had argued for a government created and limited by the consent of the governed in order to prevent the strong from depriving the weak of their life, liberty, and property But MA showed that a popular government was too weak, and PA showed that a popular majority could be too strong Neither mob rule nor aristocracy, government by the few, could work Madison stated that the greatest difficulty was that you must first enable the government

The Lessons of Experience

The Framers

to control the governed; and in the next place oblige it to control itself and believed that a written constitution was insufficient to limit the government, as seen in the example of British rule The Challenge Immediately after the delegates had settled and organized, the Virginia delegation under Governor Edmund Randolph presented a wholly new plan drafted by James Madison, so directed the discussion of the convention away from amending the Articles and towards making a new constitution Strong national government with legislative, executive, and judicial branches that had supreme power over inter-statial matters and that could veto any state law Bicameral legislature, one house elected by people and one by the other house Executive and national judiciary chosen by the national legislature A council of revision composed of executive and judiciary members could veto acts of legislature, and the legislature could veto that Two weeks later, under William Patterson of NJ, the smaller states worried that if both houses of Congress were to be represented by population, then they would be disadvantaged The NJ plan was an amendment to the Articles, unlike the Virginia Plan Gave more power to the national government (less so than the VA Plan) but kept the policy that each state got one vote in Congress June 19 the first vote on the issue was held, and 7/11 states preferred the VA Plan So the NJ Plan was modified to include a lower legislative house with each state allotted the same number of representatives, to be elected by state legislatures Over Independence Day break, a committee debated the issue, then submitted the Great Compromise to the full convention for further debate The terms were settled as follows: the representation in the House of Representatives would be determined by population, while all states would be equally represented in the Senate July 16 a vote was taken: five states were in favor, four opposed, two did not vote, so the compromise was accept only narrowly Further compromises: Between direct election of the president and election by Congress, the convention formed the electoral college Between a life term for president, seven-year term, and three-year term without reelection, the convention chose a four-year term with possibility of reelection Between Supreme Court justices chosen by Senate and by president, the convention chose for the justices to be nominated by the president but confirmed by the Senate July 26 the first draft of the Constitution was started by the five-member Committee of Detail and was largely drafted by Gouverneur Morris out of the various proposals and unresolved issues of the convention August 6 the draft was submitted to the convention for debate and revision

The Virginia Plan

The New Jersey Plan

The Compromise

September 17 all twelve attending states approved it (through three delegates did not) The Constitution and Democracy The Framers of the Constitution did not create a pure democracy, with the people ruling directly, because did not want the majority's shifting passions to rule, and did not want minorities to be overrun Instead, wanted to create a republic with a system of representation in which two kinds of majorities were observed: majority of the voters and of the states Through the framers may not have intended it, judicial review limited the power of popular majority by giving the Supreme Court the power to declare an act of Congress unconstitutional The framers made it easier to amend the Constitution than the Articles; an amendment can be proposed by a 2/3 Congress vote or a request by 2/3 of the states to hold a national convention, and it must be approved by of the state legislatures or special ratifying conventions Separation of powers: unlike in parliamentary democracies where one legislature held all power, the American system split power between three separate branches of government Federalism: unlike in most European governments were the national government held the most authority, the American system split political authority between national and state governments In writing the Constitution, whether or not federalism should be implemented was not controversial, but rather its extent Three categories of governmental powers: Enumerated powers (AKA delegated powers) are those given exclusively to the national government (ex. Printing money, declaring war, making treaties, conducting foreign affairs, regulating international and inter-statial commerce) Reserved powers are those given exclusively to states (ex. Issuing licenses, regulating intra-state commerce) Concurrent powers are those shared by the state and national governments (ex. Collecting taxes, building roads, borrowing money, having courts) From British rule and from the Articles, the framers learned that people would pursue selfish interests, sometimes leading to exploitation of others, because human nature was not good enough to prevent it Many, including Aristotle, believed that one of government's tasks was to cultivate virtue among the governed But the framers thought that ^ would require too strong a government, so instead used ambition to counteract ambition by dividing power among many offices and levels, so that individuals and factions, each struggling to further their own interests, would prevent any one of them from becoming too powerful The question of whether or not the Constitution would create a government that would respect personal liberties was the subject of heavy debate Federalists (or nationalists) supported the Constitution, while Antifederalists (or statesrighters) opposed it

Key Principles

Government and Human Nature

The Constitution and Liberty

Although the Articles required that all thirteen state legislatures approve any modification to itself, the framers required that only 9/13 state ratification conventions to approve the Constitution, because they know that unanimity was impossible The Antifederalist View (or, the Sides and Outcome of the Argument) The Antifederalists: Defined by their belief that only a small republic with rulers in close check by (and physically close to) the ruled could ensure the security of liberty Feared (correctly) that a strong national government would be too distant from the governed and take over or overrule state functions, ex. Congress taxing heavily, Supreme Court overruling state courts, president in charge of large standing army Favored a loose confederation of states Though if a strong national government was to be created, believed it required further restrictions than those already in the Constitution, ex. Narrower Supreme Court jurisdiction, creation of a council to review president's actions, letting state militias take care of military affairs, making the House of Representatives bigger to represent a wider variety of interests, curbing Congress's power to tax, and adding a bill of rights to the Constitution French political philosopher Montesquieu and most Americans were in accordance, believing that only small direct democracies or large legislatures with small districts and high turnover rate James Madison's Federalist No. 10 and No. 51 offered a rebuttal: Argued that liberty is safest in large republics because there were be many differing opinions and interests, so a tyrannically large coalition, or alliance of various factions, is unlikely to form and those with unpopular views are unlikely to be alone Suggested that a distanced national government was good because it would be insulated from public passion (just as the Antifederalists supported the opposite because they believed politicians would serve self-interests) The Federalists ended up prevailing because of the weaknesses of the Articles, the precarious position of the new country, and the inability of the Antifederalists to agree on an alternative to the Constitution A bill of rights, which would have furthered protection of liberty, was not added at this time, despite having been proposed by Elbridge Gerry, because: The Constitution already contained several specific guarantees of individual liberties, ex. No suspension of habeas corpus (ensures that people are not detained without just cause) except in invasion or rebellion, Congress and states cannot pass bill of attainer (declares someone guilty of a crime without a trial) or ex post facto law (makes an act criminal even though it was legal when it was performed), criminal cases have right to trial by jury, citizens of each state are entitled to the same privileges and immunities, no religious requirement for holding federal office, and states cannot pass laws impairing the obligation of contracts Seemed unneccesary because most states already had bills of rights The Framers thought that the power of the government they were creating was limited only to those stated in the Constitution, and feared that a listing of rights would imply that the government had the power to do anything not expressly forbidden

Need for a Bill of Rights

The small states ratified readily, but in the large states ratification was often just barely won, sometimes only because a bill of rights had been promised June 21, 1788 the 9th state ratified (NH), making the Constitution law (all thirteen states would ratify by spring of 1790), and 1789 the new government took office amid enthusiastic reception To establish the Bill of Rights, at the first session of Congress James Madison introduced a set of proposals largely based on the VA bill of rights, 12 of which were approved by Congress, and by December 1791 10 of which were ratified by the states The first 10 amendments limited the power of only the federal government over citizens, not state governments (though the 14th Amendment would later extend these limitations to states) The Constitution does not mention slavery outright, despite slaves making up 1/3 of the southern population and despite many of the framers owning slaves Thomas Jefferson tried to insert a clause opposing the slave trade Many northern states effectively ended slavery, while most southern states (though George Mason of VA predicted that slavery would lead to a national calamity) But slavery could not have been ended by the Constitution, because then the southern states would never ratify it, because the Articles left each state free to decide for itself to allow slavery or not So compromises were made (the Greatest Compromise): To determine representation in the House, each slave would count as 3/5 of a citizen The importation of slaves was guaranteed to not be outlawed until 1808 (though the government was not required to outlaw it after that time) Slaves who had escaped to free states were to be returned by that state to their masters The framers sidestepped the issue of slavery in the hopes that the union the Constitution would create would be strong enough to withstand the problem when it came to a head The framers were motivated by a variety of interests, of which economic ones played a moderate role The framers came from a wide variety of economic backgrounds in terms of wealthiness, slave ownership, and indebtedness 1913 Charles Beard's An Economic Interpretation of the Constitution argued that the wealthier framers from urban and commercial backgrounds and those who were heavy creditors supported the Constitution because they would benefit from it But 1980s economics employed more advanced statistics and found that, except on the issue of slavery, framers' votes were most influenced by the economic position their state, not themselves, ex. How big land speculators and big creditors did not vote to their own advantage Economic motivations were more influential at the state ratifying conventions Those who were merchants, lived in cities, owned western land, were creditors to the government, and who were not slaveowners tended to support the Constitution

The Constitution and Slavery

The Motives of the Framers Economic Interests at the Convention

Economic Interests and Ratification

However, in some states were small farmers made up the majority of delegates, the vote to ratify was unanimous The Constitution and Equality In the time of the founders, those who opposed a strong national government feared that it would create inequality by giving a few people special privileges or by allowing private parties to control exclusive charters and monopolies; they believed the worst inequality to be political inequality Today, many believe that the government needs to be stronger in order to restrain inequalities in the marketplace and int wealth

Constitutional Reform: There are two main categories of critics of the Constitution: those who want a stronger Modern Views government and those who want a weaker government Reducing the Separation of Powers (or, Increasing the Strength of the Government) With the separation of powers, it is difficult to perform prompt, decisive, comprehensive action These critics support an increase in presidential powers to reduce gridlock, help voters hold the president and his party accountable for their actions (because presidential policies tend to be adopted only after delay and watering-down by Congress), and reduce undue interference from special interests and legislators in government agencies The proposed system often resembled the British parliamentary system, in which the prime minister is the leader of the majority in Parliament Those who oppose these critics argue that systems like the British one are just as (in)effective, that congressional scrutiny generally improves presidential policies, and that congressional interference in government agencies allows citizens and interest groups to resist the bureaucracy

Making the System Believe that the government ends up doing too much for everybody in catering to the short-term interests of interest groups (like repeatedly operating an adding machine) Less Democratic (or, Some suggest that a limit on taxes be placed, or that the government must have a balanced Decreasing the budget each year, or both, and that these could be overridden in wartime or by an Strength of the extraordinary majority in Congress Government) Some suggest that the president be given a line-item veto, like most state governors have, that would allow him to veto part of a bill but approve the rest to avoid unnecessary spending but still enact good portions of a bill 1996 under President Clinton the Line Item Veto Act was passed that gave the president a limited line-item veto, but 1998 in Clinton et al. v. New York et al. the Supreme Court decided that the act was void because the Constitution still did not allow the president to do so Others believe that the federal courts are too powerful and need to be restrained Opponents argue that the budget is a slippery deal, and that an across-the-board limitation on court powers interferes with their ability to protect people's rights

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