Chapter Two

Constitutional Foundations

I. The “supreme law of the land”

a. The Founding Fathers created the Constitution to be the supreme law of all of the United
States of America.
b. It is called a “living document” because of its ability to grow and change with the times.
II. The Declaration of Independence
a. The Founders (Jefferson, Adams, Franklin, Roger Sherman, and Robert Livingston included
ideas from Enlightenment thinkers such as Locke, Rousseau, and Montesquieu in the
Declaration.
b. By looking at Locke, you will notice many similarities in the language and ideas used.
i. Natural rights as they relate to life, liberty, and property.
ii. The consent of the governed
iii. Concept of limited government
c. Major parts of the document
i. Philosophical Basis
1. The Declaration establishes “unalienable rights” as the cornerstone of natural
rights.
2. limited governments are formed receiving their powers from “the consent of
the governed”
ii. The Grievances
1. This part is the “case” against Great Britain
2. taxation without representation
3. unjust trials
4. quartering of British soldiers
5. abolition of colonial assemblies
6. policy of mercantilism
iii. The Statement of Separation
1. Jefferson said that the colonists had no choice but to revolt.
2. England had a supreme navy and resources that could support a war…the
colonists had knowledge of the land, leadership, and a desire to be free
d. Founders tried to create a government based on the idea of the consent of the governed.
i. State governments granted their citizens the same rights they had under British rule.
ii. Power was NOT centralized, and the Articles of Confederation, could not end up as a
govt. with a king.
e. Even though the Founders said that “all men are created equal” this was only meant to
apply to white male colonists.
i. Property as an indicator of wealth and status was also a requirement for political
office
III. The Articles of Confederation
a. The first government of the United States, the Articles of Confederation, relied on the states
to make the decisions that would ultimately determine whether the new nation would
survive.
b. There were two levels of government
i. A weak national government
1. one-house (unicameral) Congress
a. could declare war, make peace, sign treaties
b. could borrow money, but had no power to tax the individual states
c. there was a national army and navy, but had no power to draft soldiers
2. no chief executive or national court system
3. legislation had to have a 2/3 majority to be passed, and amendments had to
have unanimous consent
ii. Dominant state governments
1. imposed tariffs on each other
 2. created their own currency
3. refused to amend the Articles
4. refused to recognize treaties made by the national government
iii. Successes of the national government
1. Northwest Ordinance, which abolished slavery in the newly acquired
northwest territories
2. established some of the first cabinet positions, thus creating a bureaucracy
iv. New middle class
1. developed on the state level
2. small farmers began to dominate state politics
3. led to opposing political parties (Federalists and Anti-Federalists)
4. Shays’ Rebellion
a. Farmers returning from the Revolutionary War were faced with
extremely high taxes, for which they had no money to pay
b. Farms were taken from the farmers who could not pay
c. Daniel Shays led a group of farmers to take over the Massachusetts
State Armory
d. Revolt succeeded in pointing out the many problems faced by the new
government
IV. The Constitution
a. With the exception of Rhode Island, the rest of the states sent 55 delegates to the
Constitutional Convention in Philadelphia in 1789
b. Make-up of the delegation
i. All men
ii. Average age – 42 (Ben Franklin was oldest at 81)
iii. Most had important roles in the Revolution
iv. Most had served in their state legislatures
v. Most were of moderate means, some wealthy – but none were poor
vi. Some, but not all, had attended college (31)
vii. Many were merchants, lawyers, farmers, and bankers
c. Original intent of the Convention was just to REFORM the Articles, but most in attendance
realized that reform wasn’t enough
d. They shared a cynical belief that people could NOT be given the power to govern freely, so
checks had to be put into place.
e. Because the delegates came from not only the upper class, but the newly developing
middle-class, factions started to show that would exist not only in society, but in politics as
well. (Federalist 10 says that these factions could ultimately paralyze the government)
f. Key Concepts of the Framers
i. William Blackstone’s Commentaries on the Laws of England, Montesquieu’s The Spirit
of the Law, and Rousseau’s Social Contract all showed popular sovereignty (the right
to rule yourself) and limited government (not too powerful). John Locke’s Second
Treatise of Civil Government also gave the Framers judicial review (the power of the
judicial branch to determine the constitutionality of laws)
ii. From the many state constitutions, the Framers developed the ideas of Checks and
Balances and the Separation of Powers
g. Key Agreements and the Great Compromise
i. Major disagreement was over representation in Congress – two plans developed
1. Virginia Plan
*. Proposed by Edmund Randolph of Virginia
*. Bicameral Legislature based on population or contributions to the central
government
*. Lower house popularly elected
*. Upper house to be chosen from lists provided by the state legislatures
2. New Jersey Plan
*. Proposed by William Patterson of New Jersey
 *. Unicameral Legislature where each state would be equally represented
ii. The Connecticut (Great) Compromise
1. Congress would be bicameral (from the Virginia Plan)
2. The lower house was made of members that were popularly elected and was
based on state population (from the Virginia Plan)
3. The upper house had equal representation for each state (from the New Jersey
Plan)
4. All spending bills had to originate in the lower house
iii. The 3/5 Compromise
1. dealt with the issue of representation in the lower house
2. most slave-holding states favored having slaves included in the population
count
3. for taxation purposes, each slave would be counted as 3/5 of a person
iv. The Commerce Compromise
1. the National government was forbidden from taxing exports
2. the State governments could not tax imports from other states or foreign
nations
v. Slave Trade Compromise
1. Southern states feared that Congress would be swayed by the northern
industrial interests and hurt the agricultural interests of the south.
2. In exchange for the southern support of the Commerce Compromise, the
convention said that it would not take any action on slavery for 20 years.
I. Amending the Constitution
h. MUCH easier process than that under the Articles
i. The US Constitution has only changed 27 times since it was originally ratified
i. This makes it one of the world’s strongest and longest lasting governments.
ii. Since the Bill of Rights, the strongest theme in the latter 17 amendments is the
expansion of citizenship rights.
j. The amendment process was thrown into the writing of the Constitution (Article 5) to make it
flexible and usable in any time period – A “Living Constitution”
k. Issues dealt with by amendments and their locations
i. Civil Rights – 1-9, 13, and 14
ii. Governmental Power and Function – 10, 11, 16 and 27
iii. Election Rules and Office Holding - 12, 17, 20, 22 and 25
iv. Social Concerns – 18 and 21
v. Voting Rights – 15, 19, 23, 24, and 26
l. 3 ways to amend (change) the Constitution
i. Constitutional Amendment

Article V - The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of
this Constitution, when ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no Amendment which
may be made prior to the Year One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and
that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

1. 4 ways to actually amend the Constitution in writing

a. Proposed by 2/3 in BOTH houses of Congress and ratified by ¾ of State
Legislatures
 b. Proposed by 2/3 in BOTH houses of Congress and ratified by
conventions in ¾ of the states
c. Proposed by a national convention and ratified by ¾ of State
Legislatures
d. Proposed by a national convention and ratified by conventions in ¾ of
the states
2. Most proposed amendments have time limits for ratification…but the 27th
didn’t. It was actually proposed in 1789…and ratified in 1992 when Michigan
became the final state needed for passage.
ii. Judicial Interpretation
1. In this instance, the Constitution is not actually added to in writing, but rather
changed through the actions of the federal courts.
2. The Constitution doesn’t specifically say who is to decide issues of
constitutionality, that was determined by Marbury v. Madison (1803)
3. By saying parts of the Constitution mean one thing rather than another, the
courts effectively change the “meaning” of the Constitution.
iii. Political Practice
1. In this instance, the Constitution is not actually changed in writing, but rather
through the actions of presidents and Congress setting “precedents”
2. Two major examples
a. There is no formal mention of a Presidential Cabinet in the Constitution,
but all presidents have had one and it eventually became the mode of
normal operations for US government.
b. President Washington began a “No Third Term” tradition that each
president after him willingly followed (without the Constitution telling
them that they could not serve more than two terms) until FDR and the
passage of the 22nd Amendment.
V. The Birth of Political Parties
a. Federalists
i. Federalists, led by Hamilton, Jay, and Madison, wrote a collection of essays
supporting the ratification of the Constitution. They used the pseudonym Publius.
ii. The Federalist Paper No. 10 argues that a “tyranny of the majority” could threaten
the economic well-being of the new nation.
iii. The new Constitution, they argued, would ensure the protection of minorities
1. it gave each state “full faith and credit” as well as a republican form of
government.
2. it specifically prohibited the passage of ex post facto laws (retroactive laws)
and bills of attainder (a law declaring someone guilty without a trial) and
prohibited the suspension of the writ of habeas corpus (due process rights)
b. Anti-Federalists
i. Led by George Mason and Richard Henry Lee wrote their own papers called The
Pennsylvania Packet, and Letters from the Federal Farmer, under the pseudonym
Brutus.
ii. They felt that the Constitution would establish an economic elite and would create
the potential for an abusive government.
iii. Their biggest complaint was the lack of a bill of rights.
II. Features of the written Constitution
c. Longevity
i. The Preamble defines the objective of the document
1. form a more perfect union
2. establish justice
3. ensure domestic tranquility
4. provide for the common defense
5. promote the general welfare
 6. secure the blessings of liberty
ii. major factors affecting the Constitution’s longevity
1. separation of powers
2. checks and balances
3. elastic clause
4. reserved power for the states
5. rights guaranteed to the citizens
6. precedents and traditions creating an unwritten Constitution
7. judicial review
8. amendment process
9. inherent powers of the president
d. Branches of Government
i. Article I
1. broadly defines the legislative powers of Congress
2. Splits responsibility between a bicameral legis.
a. House of Representatives
i. Representation based on population
ii. Most responsible to the people
b. Senate
i. Make-up based on equal representation
ii. Joins with the House to pass laws
3. rules governing impeachment is also spelled out
ii. Article II
1. determines the nature of the chief executive
2. Powers are not as clearly spelled out as in Art. I
a. major responsibility is to administer and execute the laws of the US
b. inherent powers also expand the power of the president (powers given
to any leader of a nation)
c. signs bills passed by Congress into law
3. also outlines the mechanics of the Electoral College and determines the
procedures to take place should one candidate not receive a majority of the
electoral vote
4. Article III also refers to executive departments, but no specific mention of
cabinet or bureaucracy.
iii. Article III
1. outlines the nature of the judicial branch
2. this is the most vague article when it comes to qualifications of its members
3. refers to the Supreme Court
a. manner in which cases get there
b. no reference to the broad authority of interpretation that the S.C. has
assumed
c. this is a result of Marbury v. Madison
4. scope of the court system and its jurisdiction are defined in Article III
5. defines treason and provides for a range of penalties (even death –
Rosenberg’s are the only ones that have been put to death for treason)
e. Legislative Powers
i. House – 435 members based on decennial census
1. term of office – 2 years
2. must be 25 years old, US citizen for seven years, and an inhabitant of the
state they represent
3. brings impeachment charges
ii. Senate – 100 members based on equal suffrage for each state
1. term of office – 6 years
 2. must be 30 years old, US citizen for nine years, and a resident of the state
they represent
3. tries all impeachment trials
iii. Enumerated Powers
1. also known as delegated powers, since they are specifically written out
2. listed in Article I, Section 8
a. power to tax
b. borrow money
c. regulate commerce between states and with foreign countries
d. coin money
e. make laws punishing counterfeiting
f. copyright laws
g. creating post offices
h. establishing lower federal courts
i. declare war
j. raise and support a navy and army
3. Implied Powers
a. Article I, Section 8, Clause 18 is known as the “elastic clause” or the
“necessary and proper clause”
b. It states that Congress has the power to “…make all laws necessary
and proper for carrying into execution the foregoing powers…”
c. Gives Congress the power to broadly interpret their powers
f. Executive Powers
i. Strictest qualifications of the three branches
1. 35 years old
2. Natural born citizen
3. resident of the US for at least 14 years
ii. term of office is 4 years, limited to 2 terms (22nd Amendment)
iii. specific powers are spelled out in Article II, Sections 2 and 3
1. commander in chief
2. obtain information from members of the executive branch (executive
privilege)
3. grant pardons
4. make treaties (with consent of Senate)
5. appoint ambassadors, justices, and other officials (with Senate consent)
6. power to sign or veto legislation
7. duty to give Congress the State of the Union report at least once a year
8. call special sessions of Congress
9. inherent power of the president
iv. power of the president has been on a steady rise since the days of FDR’s New Deal
(creating a large bureaucracy)
v. also known as the head of his political party
vi. VP’s powers are also spelled out in Article II
1. only specific power is to cast a tie-breaking vote in the Senate
2. also next in line to succeed the POTUS should he die in office (25th
Amendment)
g. Judicial Powers
i. No specific qualifications for office
ii. “hold their offices during good behavior”
iii. life terms for appointment
iv. Major power is that of “judicial review”
v. Absolutely no accountability to voters
h. Balance of Power
i. Checks and balances comes from Montesquieu’s Spirit of Natural Laws and James
Madison’s Federalist No. 47
 ii. Set up so that each branch would have influence over the other two and no one
would be greater than the others
iii. Examples
1. as of 1990, there were more than 2500 presidential vetoes, with Congress
overriding a very small portion of them (about 100)
2. Supreme Court has found more than 100 acts of Congress unconstitutional
3. Senate has refused to confirm 27 nominees to the Supreme Court and nine
cabinet members
iv. Critics of the checks and balances have claimed that a crisis could arise if one branch
challenges the authority of the others
v. Most significant feature of checks and balances is that it continually proves that our
government is limited ****
vi. Even our most dominant presidents have had to deal with concerns of the legislature
and judiciary