The Constitution

The Constitution U.S. Chapter 2

The Paradoxical US Constitution • The constitution … • Is the most respected political document in the US and the most misunderstood • Attempts to create a powerful, yet limited government • Rested on popular support, but limited popular participation • Revered human rights, but allowed for slavery, second class status for women • Was based on political idealism but also pragmatic compromises

The Nature of Constitutions • Every group has rules of operation • From clubs to countries • Long history of constitutions in West • Ancient Greece, Magna Carta • After fall of Roman Empire, Middle Ages • Divine Right, backed by theology and military might • The Enlightenment was an intellectual, political and scientific movement focusing on humanism • Challenged idea of Divine Rights, England – John Locke • Argued government was about serving people • Against idea that people served divinely appointed ruler

English/Colonists’ Experiences with Constitutions • Magna Carta in 1215 first limit on power of English Monarch • Slow development of “unwritten constitution” in England • English Bill of Rights in 1689 required that English Monarch could not act without approval of parliament • English Glorious Revolution in 1689, theorist John Locke • English Monarch today is symbolic, Parliament has power • Many similar rights in US Bill of Rights • English settlers who came to America wrote constitutions for their colonies and then again for states when gained independence from England • Starting with Mayflower compact in 1620

The RevolutionaryRoots of the Constitution • Colonists in America in the late 1700’s enjoyed a degree of freedom few other people had at that time • The Continental Congress asked a committee to write a statement of independence • The resulting Declaration of Independence followed John Locke’s idea of government based on consent of the people

From Revolution to the Articles of Confederation • The Articles of Confederation created a confederal system: power is centered in the regional governments • Each state had supreme power within its borders • The national government was weak

Under the Articles of Confederation: 1781-1789 • Created a weak central government • One house legislature and no independent executive or judiciary • The central government had no power to force states to follow its laws • States could not be required to collect taxes for the national government • Each state of the 13 states had one vote in the legislature, passing a bill required 9 votes • To amend the Articles of Confederation required a unanimous vote of all states

Under the Articles of Confederation: 1781-1789 • The Articles of Confederation allowed the national government to • Create a national army and print money • But states could and also did do these things • Created state militias and printed their own money • States did not always recognize other states contracts • The main point is that the Articles of Confederation was a Confederal system • The main power was at the state level, not the national level

Under the Articles of Confederation: 1781-1789 • Why was the US set up this way? • People thought of themselves as residents of states first • Colonies, in some cases, had existed for more than 100 years, the US had just been created • States were competing with each other over westward expansion and did not want to be limited by national government • People had rebelled against a strong central government (England) and did not want to recreate that

Under the Articles of Confederation: 1781-1789 • The Articles of Confederation failed because: • The national government had no power to tax • There was no independent leader to direct the national government • The national government could not regulate interstate and foreign commerce • It could not be amended without the unanimous consent of all the states • It was unable to react quickly to emergencies (Shay’s Rebellion)

The Constitutional Convention • A convention was called to revise the Articles in Philadelphia in 1787 • Immediate cause was concern about the national government’s inability to respond to Shay’s rebellion • All states except Rhode Island sent delegates

The Constitutional Convention • The people who attended the convention were people involved in the revolutionary war and national gov’t • George Washington – most popular person in US • Alexander Hamilton – advocate for strong central gov’t • James Madison – had many ideas, kept important journal • Generally upper and middle class • Some have argued convention was for benefit of wealthy, but some wealthy opposed constitution, and some wealthy favored constitution • Key motivation for involvement seems to be support for stronger national government, concern US was too weak to survive

The Constitutional Convention • Some historians have argued founders were just trying to protect their economic self-interest • The constitution does protect property and the rule of law • But, the constitution allowed for social mobility and opposed titles of nobility • In general the founders were middle to upper class • Today some people make claims about the religious nature of the founders • When you examine the religious background of the founders there is a diversity of religious backgrounds and some people with no formal religious ties • Based on what was written in the constitution they created a sharp separation between religion and holding political office

Ratification of the Constitution • From summer 1787 until they finished September 17, 1787, the convention worked on writing a new Constitution • Under the rules of the Articles of Confederation all 13 states had to ratify a change for it to go into effect • This was going to be difficult • They ignored the rule and pretended they were starting from scratch and created a new rule that said this new Constitution would go into effect when 9 of the 13 states ratified the new Constitution • How did they get away with this? • Enough people were unhappy with the Articles of Confederation government • Large states (New York and Virginia) eventually ratified the new Constitution

Ratification of the Constitution • As part of the debate over ratification of the Constitution an important set of arguments in favor of ratification were put forward in the Federalist Papers • They were written by Hamilton, Madison and Jay • 85 brief essays written to convince the state of New York to vote in favor of the Constitution • Most famous essays: • Essay 10: problem of political parties and interest groups • Essay 51: importance of a system of checks and balances • The Federalist Papers are important because • Provide insight into thinking behind Constitution • Sometimes used by Supreme Court

Ratification of the Constitution • Federalists (pro) and Anti-federalists (con) debated the merits of the new Constitution, as evidenced by the writings contained in the Federalist Papers • A promise add a Bill of Rights emerged as a concession to gain the required states for ratification (especially New York) • The Bill of Rights restrains the national government by listing specific rights and liberties which citizens cannot be denied • The Bill of Rights emphasizes the limited character of the national government’s power

Structure of the Constitution • One major change from the Articles of Confederation is that the Constitution begins “We the People” • The Articles of Confederation began by describing a “perpetual union between the states” • By appealing to “the People” the founders hoped to gain support for the new Constitution

Structure of the Constitution • Seven major articles • Entire document is quite short • First three articles cover the three branches • Article I Congress – detailed, main power of gov’t here • Article II President – detail about election, rest short • Article III Judiciary – short, just creates the Supreme Court, leaves rest up to Congress • Article IV covers relations between states • Remaining articles short • Article V – amendment process, makes change difficult • Article VI – supremacy clause and requires gov’t to honor debts, no religious test for office • Article VII – 9 out of 13 rule for ratification

Article V Amendment Process Proposal process 2 never used Ratification process 2 only used once

Dilemmas of the Constitution • How to create a stronger national government to address problems of Articles of Confederation, without becoming tyrannical? • How to create a national government which would inevitably reduce the power of the states and still get it approved by the states? • Should the states be treated equally or not? • How could the founders get popular support for the constitution even though the founders did not trust the average person?

Representation: The Great Compromise • Two approaches to Representation in the Congress • Virginia plan: Two Chambers, states represented by population in each chamber, so larger states would have more power • New Jersey plan: One Chamber, less change from Articles of Confederation, each state (large or small) would have equal representation • The Great Compromise • Two Chambers (bicameral), • House of Representatives states represented by population • Senate each states has the same representation (2 Senators)

Limiting Power: Separation of Power • Separation of Powers is the idea that each branch of government has specific responsibilities separate from the other branches • No person serves in two branches • Followed in many state constitutions • Legislative Branch (Congress): Writes laws • Executive Branch (President): Carries out laws • Judicial Branch (Courts): Interprets laws • Each branch also has other responsibilities • A Separation of Powers system is different from a Parliamentary system where the executive is chosen from the legislature

Limiting Power: Checks and Balances • Checks and Balances is the idea that each of branch of government can limit the other two branches in some way • Founders gave Congress many ways to check the President (power of the purse, watchdog function, impeachment, power to declare war) because most concerned about tyrannical executive • The Supreme Court’s power to declare laws unconstitutional is not directly written in the constitution, was claimed by Supreme Court in 1803 case Marbury v. Madison • President can veto laws, appoint judges to Court, pardon those convicted of federal crimes • See chart (many different types of checks)

Slavery • Founders allowed slavery • Many in north agonized over slavery, but few did anything – they expected slavery to “wither away” • Those from the south who depended on slave labor would not join the constitution if it outlawed slavery or diminished their power • Stain on constitution, led to decades of human misery and bloody Civil War • Compromise over slavery in Constitution • Slaves counted as 3/5’s of a person for a state’s representation in the House of Representatives, but slaves not allowed to vote • Northern states supposed to return Fugitive slaves • The slave trade: said Congress could not end slave trade until 1808 (Congress did end slave trade 1808)

Electing the President and Vice President • Founders rejected the idea of popular election: did not trust average voters; founders were afraid of “mob rule” • Created the electoral college: a body of electors from states, chose President and Vice President by majority vote • To start with most states had their legislature choose the electors, today all states have electors chosen by the people • Originally, electors did not cast separate ballots for President and Vice President, but since 1804 they have • This change was necessary to take account of parties • If no majority in the electoral college: • President chosen by House from among the top three vote getters (with each state having one vote) • Vice President chosen by Senate from among the top two vote getters (with each senator voting individually

Federalism: National or State Power? • The founders wanted to set up a system that would give more power to national government, but which would be approved by the states • A unitary system would have been opposed by the states • The confederal system before was too weak • Developed the federal system: some power for states and some for national government • The specific or enumerated powers of the national gov’t are listed in the section on Congress (Article I, section 8) • In addition the end of Article I, section 8 states that the national government has implied powers, which stretch the national gov’t power through the “necessary and proper” clause (sometimes called the “elastic clause”) • States have powers such as: choosing the President, ratifying amendments, 10th Amendment (not that effective)

Elections: Defer to the States • Rather than defining who could or could not vote, the founders left it up to the states to decide who was allowed to vote at the national level • Again, because the founders distrusted average citizens they set up a system that would continue the elite system in place at the state level • Most states required a person to have a certain amount of property to be allowed to vote • The constitution required that anyone who could vote for the state’s lower house be allowed to vote for national elections • But the constitution also allowed the Congress to change the rules for who was allowed to vote

Popular Rule • The founders wanted popular support for a system that limited popular rule • Founders gave states the power to determine who could vote • Which offices could people vote directly for? • Originally, only the House of Representatives • In 1913 the 17th amendment was passed to allow people to vote directly for their Senators • Senators are also elected for 6-year terms with 1/3 elected every two years, so takes 4 years to elect majority • President chosen by electoral college • Federal judges nominated by President, confirmed by Senate serve lifetime appointments • In general the system devised by founders does not respond quickly to popular opinion

removed 1913

Interpreting the Constitution • Interpreting the Constitution is not a simple exercise: • Because the founders tried to resolve many contradictory desires • Because people have different interpretations about what the founders intended • Because people have different interests • Because issues have developed which the founders could not have imagined • Different philosophies have developed for interpreting the constitution: • Living Constitution v. Original Intent • Strict Construction v. Loose Construction • Judicial Activism v. Judicial Restraint

Interpreting the Constitution • Living Constitution and Loose Construction are usually associated with liberals • The idea that we have a living constitution is the idea that the constitution was written in a different time and each generation interprets it for their time • To be able to interpret the constitution in this way requires loose construction of the words so they can be appropriate for today’s world • Liberals would support this view because it generally allows for more government action in the economic area and less government action in the private area

Interpreting the Constitution • Original Intent and Strict Construction are usually associated with conservatives • Conservatives tend to support traditional values and therefore try to interpret the constitution based on determining the original intent of the founders • To do this they use a strict construction of the words used in the constitution • In general this leads to less government involvement in the economic area and more support for traditional values in the private area

Interpreting the Constitution • Judicial Activism v. Judicial Restraint • During the 1950’s and 1960’s there were a number of famous liberal Supreme Court decisions (such as Brown v. Board of Education (1954) ending segregation in schools, Miranda, etc…) • Conservatives opposed these decisions on the grounds that these judges were judicial activists, that the judges were substituting their liberal beliefs for a correct reading of the Constitution and taking the over the job of making policy from legislatures • Conservatives called for these judges to practice judicial restraint and not change the laws passed by the legislature • Because of this some conservatives have developed a belief that judicial activism is always liberal • But this is not the case, for example when conservatives brought a lawsuit to declare Obamacare unconstitutional, they were calling for conservative judicial activism

Interpreting the Constitution • Who should interpret the Constitution? • Until 1804 the President claimed, in his veto message that by vetoing a law he was determining that it was unconstitutional • From 1804 after the Supreme Court decision in Marbury v. Madison the Supreme Court has interpreted the constitution • But the Supreme Court is dependent on other branches for carrying out its decisions • Also the Supreme Court is aware of changing popular opinion, so what you think about the Constitution also matters

The Constitution