1783-1788 Constitutional Foundations

1. 1783-1788 Constitutional Foundations Richard Jensen Imperial TAH

2. Summary: USA gets Strong National Government • Nationalist sentiment led by veterans • Washington; Alexander Hamilton (NY) • Long term vision of great nation • Philadelphia: secret convention 1787 • Terms of Office: 2-4-6 years • Supreme Court; lifetime job • Ratification Debates • Federalist papers • Antifederalists & Bill of Rights • YES: need strong gov't • Washington’s leadership • Bill Rights promised soon

3. Critical Era of 1780s • Theory 1: Confederacy too weak • Theory 2: it’s OK • Evidence: • World at peace and no direct threats • USA very weak government; cannot pay its bills because cannot collect taxes

4. Problems with Confederation • Very weak central government • No money, no taxes, no president • Dangerous world needs strong government • No wars in 1780s– but major wars in Europe in 1760s and 1770s, and again in 1790s • 13 separate states feud with each other • Spirit of nationalism requires strong country • Solution: write a new Constitution

5. Main Idea = Republicanism • Get rid of aristocracy • Equal legal rights • Political power (vote) limited to • Independent • Virtuous • Strong sense of civic duty • Hatred of corruption

6. England and Europe • Aristocracy: aristocrats own and rule the country • Kingdom: King owns and rules (and controls aristocrats); • France; “absolute monarchy” • Britain: Constitutional Monarchy • Republic: the people are sovereign, and control gov’t via elections

9. Rights of Englishmen • Rule of Law • Magna Carta • Common law • Parliament • Taxation

10. What is Corruption? • Use of government power for private purpose • For example—cash in your pocket • Helping your family (nepotism) • Taking bribes • No concern for public interest • GOAL: minimize corruption

11. Railroad Corruption of Congress in Gilded Age "Serving Two Masters. The sort of thing that will cease when Senator Beck's Bill becomes a law." Kepplerin Puck 1880. .

12. Power itself corrupts • Solution: divide the power so it cannot gang up on the individual citizen • States and national government split powers • Rights of individuals protected by courts • Congress and President split the power and watch each other all the time

14. Founding Fathers: young men

15. Philadelphia 1787 • Philadelphia Convention: selected by states; secret • Basic goal" perfect machine" • Need Strong national gov't • Seek balance among dangerous forces • Leadership: Hamilton, Madison, Wilson

16. Issues 1787 • Fear of national power; solution: counterbalances • Small states vs Large • Sectionalism, North (New England) vs Middle vs South • Later: West becomes important • Inside the states: cosmopolitan seaports vs inland farms • Most states: move capital inland • No foreign dangers at the moment; inward-looking • Slavery in South

17. Assumptions • republicanism: no aristocracy; equal citizens = basic values of new system; every part must support this goal • separation of powers at national level • executive/legislative/judicial • checks and balances: each watch the other • federalism = balance between states & nation • states to remain sovereign in own sphere • State Power; citizenship; courts; taxes; cities; • control over election procedures • popular sovereignty: people ultimately rule

18. Slavery Issue • Southern states refused to consider abolition of slavery • Slaves could not vote BUT they would be counted in population • Compromise: only 60% of slaves counted • Fugitive slaves to be returned to masters • International slave trade could be abolished 20 years later (it was, in 1807)

19. Virginia Plan • Virginia was the most influential state and had the largest population • James Madison surprised delegates with complete new plan of government (not just small changes) • Proposed very powerful House • Weak President (chosen by House) • weak Senate (also chosen by House) • Small states had little power

20. New Jersey Plan • Small states would have little power under Virginia Plan so they came up with plan of their own • One state one vote, giving small states an advantage • Weak national government

21. Great Compromise • Take best part of Virginia Plan • Strong House • Take best part of New Jersey Plan • Strong Senate • Add strong president • Everyone agreed

22. Separation of Powers • Three powers: • Legislative (Congress) makes laws • Executive: (President) enforces law, commands army • Judiciary: vague in 1787 because world has never seen a strong judiciary • Ideas based on Montesquieu and his analysis of English way of government

23. Checks and Balances • Danger: everyone tries to get more power and that hurts the people • Solution: have opposing powers that will stop and neutralize this • Esp: Congress vs. President • Also: Supreme Court

24. Congress = people • Great Compromise: Senate for States, House for Population • slaved property counts, not other kind • powers; rules; officers; journals • Congressmen are independent, not tools of state government • House: represent population; power over taxes & spending • apportionment by enumeration • Senate: too aristocratic? small states demand it; • advise and consent to appointments by 51%; Treaties by 2/3

25. Office of President • President: strong elected executive • not a king, or god; not hereditary • limited powers, balanced by Congress • debate on need, danger of office; • Not a king (no inherited offices) • Not a puppet of legislature

26. Selecting a Republican President • President: strong elected executive • not a king, or god; not hereditary • limited powers, balanced by Congress • debate on need, danger of office; • reelection or term limits? 4 years re-electable • Washington tradition: only two terms (broken by FDR, 1940) • small vs large states; electoral college helps both • selection by parties: not expected • top vote getter = president, 2nd = VP • no majority? Then House picks from top 3 • only used in 1800 and 1824 • crisis of 1800 requires clarification

27. Presidential Power • executive departments not created but allowed for [Treasury, State, War started in 1789] • domestic affairs: limited explicit powers • foreign affairs; ambassadors, treaties • annex new territory? not explicit • appointments to all offices • Senate confirmation as check • Impeachment process (by House & Senate) • pardons: absolute power

28. War Powers • President as commander in chief • no independent army aristocracy • shared power with Congress • Congress declares war • Funds the military, makes rules • State militia allowed (but not state armies)

29. War Powers in 21st century • Declaration of war—obsolete since 1941 • President makes war by sending in the military • 1973: President can make war for 90 days then must ask permission from Congress • All president reject the law as unconstitutional • Never tested • Korea (1950), no permission asked; but permission was given in Vietnam and Iraq

30. Missing TopicsNot discussed at ConCon • 1. not decided: national debt, national capital location • 2. not expected: political parties; considered divisive • 3. not expected: national media & focus on national affairs & (after 1900) on the President as persona • 4. not expected: federal power expands at expense of state power • 5. not expected: growth of Supreme Court power (esp 20c) • 6. not developed: rights of minorities [Calhoun, 1830s] • 8. Not mentioned: Executive orders by president

31. Ratification by all 13 states • 1. Prestige of Washington, Franklin & other signers decisive • 2. anti-federalists: no need for central power; demand bill of rights; fear of President; fear aristocratic Senate • localistic outlook & values vs cosmopolitan federalists • Insist on Bill of Rights • 3. Federalists; Hamilton, Madison & Jay "Federalist Papers” • Madison: 10th Federalist & pluralism--the bigger the territory, the more different interests there are, and the less likely to have one dominant interest

32. Bill of Rights • Promised during ratification • 10 Amendments adopted 1789 (in effect 1791); Madison as author • Protect individual against Nation • 9th-10: reserved to states and people • 1868: 14th amendment • 20c: extend rights so state and local government (inclusing public schools) cannot infringe them • Private parties like corporations & private schools still can infringe

33. 1st Amendment: Speech, religion, assembly • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

34. 2nd Amendment: guns • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

35. 4th Amendment: privacy • The right of the people to be secure in their persons, houses, papers, and effects, • against unreasonable searches and seizures, shall not be violated, • and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. • Privacy leads to Roe v Wade = abortion right

36. 5th Amendment: property • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. • Kelo case 2005 on eminent domain

37. Later Developments • Marshall: Supreme Court makes final decisions • later amendments: • 13 no slavery; 15- Black vote • 14 equal protection • National rights extended to cover the states (20c) • Right to Privacy (1965) • Roe v Wade (abortion rights)

38. Special “Privilege” • Double meaning of “privilege” • Special advantages given to ascribed status • that is, status you are born with (race, gender, ethno-religious, ancestry) • violates “equal rights” principle • highly contested issue then and now • race/racism; “privileged” ethnics • affirmative action to counter-act the privilege

39. Who can vote? • Ex Confederates (no 1867, yes, 1869) • African Americans in South (no before 1867; yes, 1867; no, 1890; yes 1965) • Women (yes 1920) • Indians on reservations (yes, 1924) • Illiterates (no 1900; yes 1970) • Non-Citizens (no) • Age 18-21 (yes, 1972) • Felons (no? debated 2006) • Everyone MUST vote??? (yes in Australia, no in USA)

40. Control of people’s lives?Personal Liberty & Privacy • Prohibition (no sales of liquor or beer?) • Abortion (illegal to perform one?) • Gay Rights (discrimination allowed?)

41. Person Citizen Protected Class Republican Adult Basic rights Basic + US will protect internationally Indians, ex-slaves; & “minorities” after 1970 Voting Rights Political Status

42. Why important today • Supreme Court interprets the Constitution word for word • All judges, lawyers, law professors study it very closely

43. Originalism • Debate today: should we depend more on • Original understanding in 1787 • Needs of America today? • Justices Scalia and Thomas • Why: to have definite, fixed answers by using the answers of 1787 • NOT: history is contested ground. Founding Fathers usually argued a great deal and rarely were fully agreed.

44. Debate topic: war powers

45. Force everyone to vote? • Civic duty • Australia requires it with fine • Do we want uninterested people to vote? • Should felons voted (convicted criminals who have served their prison time) • Only “good” should vote • BUT: help re-integrate them into society

46. Abortion issue • Prop 85: parental notification • Rights: individual rights based on privacy and 14th Amendment • Community rights: to define what is allowed by democratic vote

47. 2006 California voters sayABORTION SHOULD BE • Always Legal 29% • Mostly Legal 35% • Mostly Illegal 23% • Always Illegal 9% Exit poll data

48. Prop 85: Vote by gender

49. Prop 85: Vote by party affiliation

50. Prop 85: 2006blue = “no”red = “yes”