Constitutional Government: Limiting Power and Ensuring Liberty in the United States

1. United States Constitution (Ch. 2) I. Constitutional Government A. Constitutionalism – a government of laws, not people, where government power is limited and government officials are restrained in their exercise of power over individuals by a legal written document. Comes to American from Covenantalism (Bible/Reformation) and Contractarianism (“secular” Enlightenment). B. Stress is on deciding on how to decide. C. Constitutional Tradition coming to America: Magna Charta (1215), Protestant Confessions (16th and 17th centuries), Mayflower Compact (1620), Colonial Charters (1630-1732), Declaration of Independence (1776), Articles of Confederation (1781-1789), Our Constitution (1787).

2. II. Problems with the Articles of Confederation (1781-1789) • Financial Difficulties – Congress had no power to tax the people directly. 90% of requested funds were never paid. • Commercial obstacles – states could and did tax the goods of other states as they were shipped through their territories. This led to too much interference by the individual states and much commercial confusion and even smuggling. • Currency problems – states printed their own money and circulated it. This lead to a great deal of monetary instability (inflation). • Civil disorder – the government was rather powerless to suppress radical or insurgent groups (Shay’s Rebellion in Massachusetts).

3. Founders-began meeting to discuss possible economic problems and then remedies to Articles. A. Who? • Well-educated (Ivy League and European), 50% college degrees (33 lawyers, 3 doctors • Well-experienced (Nearly all had served in high government offices before) • Cosmopolitan – looked beyond their individual states; had a continental perspective • Religious in the sense that they displayed all of the outward characteristics of a religiosity, not all were orthodox Christians. • 17 of 55 were slaveholders B. Congress called for this group to convene in order to draft revisions to the Articles; they came away with new Constitution.

4. V. Consensus in Philadelphia (What principles did they largely agree upon?) • Liberty and Property – They read Locke • Social Contract – government constrained by a constitution is necessary to protect God-given rights. • Representative Government – Republicanism means government by representatives of the people (indirect democracy). *they wanted people to be directly involved in the selection of only House members. • Limited government – They wanted to limit the scope of governmental power by dividing it legally (constitutionally) and constraining it. • Nationalism – The founders of the constitution shared a belief in nationalism in that they wanted a unified nation with the power to govern the people directly, not through state power.

5. VI. Conflict in Philadelphia A. Representation – How will the number of representatives in Congress be determined? 3 proposals 1. Virginia Plan (large state) –Two house legislature with the lower house (House of Rep) will be determined by a state’s population and the upper house will be elected by the lower house. 2. New Jersey plan (small state) – One house legislature, with equal state representation, regardless of population. 3. Connecticut Comprise – Two house legislature, with the House directly elected based on state population (each state would automatically receive one House representative) and the Senate selected by the state legislatures; two senators per state, regardless of population.

6. Slavery • Argued less about its existence and more about its impact on state representation • Large slave states wanted population (and therefore representation) to include the slave population. Small slave states wanted population to be based NOT on the slave population. • The Connecticut Plan included the “3/5’s compromise. It stated that three-fifths of the slave population of each state would count for total population (and representation). C. Voter Qualifications – The founders left these to the states. Every state basically allowed only land owning white males to vote.

7. VII. Resolving Economic Issues • Levying Taxes – Congress could forcefully collect its own taxes. Most of the taxes it did levy took the form of tariffs (taxes placed on imported goods). • Regulate commerce – “regulate commerce with foreign nations, and among the several states.” This helped to resolve the interstate commerce chaos surrounding the Articles. • Protecting money – the new national government controls the money supply (print and coin money). They hoped that this uniform monetary system would prevent inflation.

8. VIII. Protecting National Security • War and Military Forces – Congress was given power to “declare War” and to raise and support and regulate an army or navy. Congress was given power to prevent or put down insurrections. • Commander-in-Chief – The President is the commander-in-chief of the armed forces. He is authorized to carry out the war, while congress is authorized to declare it. • Foreign Affairs – States are prevented from entering or negotiating treaties, alliances or confederations with foreign governments. The President can make treaties, but not without the consent of the Senate.

9. IX. Structure of Government • National Supremacy – Supremacy Clause of Article VI – states that the Constitution is the supreme law of the land, taking priority over all other laws within the United States. • Federalism – power is divided (shared) between national and state governments. Each have independent legal authority and are sovereign (can not be dissolved by the other). • Republicanism – republican government means that powers are delegated to a small number of presumably gifted or qualified individuals.

10. Democracy? – While government rests upon the “consent of the governed,” decision making is to be done by the people’s representatives, not the people themselves. No referenda is ever provided or called for by the constitution X. Separation of Powers/Checks and Balances – Look in your book for checks/balances chart (Fig2.2) and study them. Madison wrote “ambition must be made to counteract ambition” Articles I, II, III (legislative, executive, and judicial) XI. Ratification – the act of state legislatures to approve or reject decisions made by other bodies. The new constitution was sent to each state government for ratification. The entire country engaged in a national debate over the new constitution and whether or not their individual state should adopt it. Two groups emerged:

11. A. The Federalists (supported ratification: John Adams, Hamilton). Wrote series of editorials in newspapers nationwide. Later collected into a book calledThe Federalist Papers B. The Anti-Federalists (Jefferson pictured to the below and Patrick Henry) • Concerned about an “aristocratic tyranny” (Senate) • Concerned about the future of state sovereignty and independence • Concerned about the protection of unnamed individual rights. Summary: They basically were concerned that the people and the states would be trampled by the larger more powerful central government. C. Bill of Rights (compromise)

12. Although the Federalists insisted that Congress could not tread on powers not specifically granted it by the Constitution (enumeratedpowers), they eventually agreed to add 10 amendments, or formal changes, to the Constitution and sent those to the states for ratification (1791). XII. Constitutional Change A. Direct ways of changing the Constitution: Amendments are changes or additions to the Constitution. -There are two methods for proposing an amendment: 1. passage in the House and Senate with a two-thirds vote. 2. passage in a national convention called for by Congress in response to petitions by 2/3s of the state legislatures. -There are two methods of ratification: 1. vote in the legislatures of 3/4s of the states 2. vote in conventions called for that purpose in 3/4s of the states

14. B. Indirection ways: Judicial Interpretations • When or if the judiciary changes the way it interprets the constitution can change the application and effect of its contents. C. Presidential and Congressional Action • When or if the president or congress changes the way they interpret their responsibilities under the constitution can change the application and effect of its contents. D. Custom and Practice • When or if the customs, culture, times, context, and so forth change, the application of the constitution may change as well.

15. Chapter 3 (Federalism) • 10th Amendment!!!!! (Look it up) I. Federalism – sovereign power is shared by both regional and national governments. No one government can dissolve the other. The Constitution is a unique document in its contribution of federalism to political theory. • Confederation – people state governmentsnational government • Unitary – peoplenational governmentstate governments • Federation – peopleboth to state and national government. *Will the European Union adopt this form (common Bill of Rights, currency, military, government)

16. II. Why Federalism? • Protect Liberty by dispersing power – creates “opposite and rival” centers of power • Increase Participation – more access points for people to participate or contact government • Improve Efficiency – one government can not control it all • Ensuring policy responsiveness – people can react to their state policies by moving (i.e., vote with your feet) • Encouraging Policy Innovation – states become “laboratories of democracy” as they experiment with policies/programs observed throughout the country • Managing Conflict – conflicts are less intense since frustrated groups know that policy battles can be settled in many different settings (50 states plus the national government) Drawbacks • slow to move desired policy because there are more veto points Provides legal basis for state noncompliance – South in the 60s in response to Civil Rights legislation and court rulings • Double taxation – state and federal taxes on income

17. III. Design of Federalism A. Delegated/Enumerated/Explicit Powers (the ones written out). National government shall have power to: • Engage in war and foreign affairs • Regulate interstate commerce (trade between states) • Regulate the Money supply • tax and spend B. Necessary and Proper Clause (Implied powers) – powers not specifically reserved but inferred from those that are (e.g., the IRS is implied in the power to tax and spend) C. National Supremacy Clause – Const = “supreme law of the land” D. Concurrent powers – powers shared by both state and federal government (e.g., tax and spend) E. Powers denied states – coin money, enter into treaties, interfere with the obligation of contracts, levy taxes on imports or exports, or engage in war. F. Powers denied to both state and national government – abridge individual rights G. Reserved Powers – Powers not granted to the national government or specifically denied to the states by the constitution are reserved for the states (10th amendment)

18. IV. The Grant as a Source of Federal Power A. Background: In the early 20th century, Congress was finally given the power to tax income. Started very low, but was raised dramatically as a result of two world wars and the Great Depression. When things sort of settled down, the national government decided in the 70s and 80s to send some of the money back to the states in the form of grants. These grants took on three forms: • Categorical Grant: A grant for a specific, narrow project (no spending discretion; typical) • Block Grant: A grant for a general government function (limited or some spending discretion) • General Revenue Sharing: A grant with generally no strings attached. B. Which form of grant maximizes Congressional power and reduces state power? Answer: categorical