The Ratification Debates

1. The Ratification Debates

2. Topics • The Historical Context • The Role of the Federalist Papers during ratification • Federalist Justifications for the Constitution

3. The Ratification Debates in Historical Context • The Ratification debates addressed two questions: • Should the Articles of Confederation be replaced? • If the Articles should be replaced, what should be the features of the new constitution?

4. Arguments against the Articles of Confederation • The national government did not have the power to enforce its own laws-Congress could not effectively regulate trade among states, collect taxes, or try individuals who broke national laws. • The federal government was not given sole power to coin money causing inflation. • Government was unresponsive to changing circumstances. New laws required supermajorities (9 of the 13 states) that were slow and costly to form. • Amendments required unanimity

5. The Constitution “fixed” the Articles, but at what cost? • Anti-Federalists argued that the new Constitution provided insufficient protection for the rights of individuals and states from the powerful new federal government. • Anti-Federalists preferred either • To scrap the national government entirely, or • Keep the Articles as they stood.

6. What was the basis for Anti-Federalist Opposition? • In general, the Anti-Federalists viewed the Constitution as a threat to five cherished values • Law • Political Stability • The Principles of the Declaration of Independence • To Federalism • Anti-Commericalism

7. The Constitution and Federalism • At the time, federalism was the idea that the states are primary, that they are equal and that they possess the main weight of political power. • The Constitution consolidation of power in the national government was inconsistent with voluntary cooperation among the states.

8. What’s so special about states’ rights? • Anti-Federalists believed that effective administration could only exist in states with a small territory with a homogenous population. • In large, diverse republics, many significant differences in condition, interest, and habit have to be ignored for the sake of uniform administration. • A large national government would impose uniform rules despite American diversity, resulting in hardship and inequity in many parts of the country.

9. States Protect Liberty #1 • Only a small republic can enjoy the affective attachment of the people to the government and voluntary obedience to the law. • Elections are not sufficient to ensure public perceptions of governmental accountability. • In a large republic, the people will not have confidence in their legislature because they are too far removed from the individuals who govern them.

10. States Protect Liberty #2 • Small republics ensure representative policymaking. • Representation depends on similarities between legislatures and citizens. • Federal elections presented voters with a choice among representatives from the well-known elite, or the natural aristocracy. State elections ensured the inclusion of the yeomanry. • The yeomanry looked after the best interest of the public at large.

11. States Protect Liberty #3 • The Constitution did not include protections for jury trials. • Whereas elections provide representation in policymaking, juries ensure representation in administration. • Juries allow the public to stand as guardians of each other’s rights, and to restrain tyrannical authorities who might infringe upon those rights.

12. The Constitution and natural aristocracy • All government is aristocratic in some respects-government is inherently the rule of the few over the many. • The Constitution, however, prevents the many from effective control over the few. The Senate, in particular, with 6-year terms, absence of term limits, and the widest-ranging policy-making powers in the national government, was believed to set the stage for the development of an aristocracy.

13. The Ratification Controversy • Ratification was closely contested nationally during 1787 and 1788 • Any nine of the thirteen states were sufficient for ratification • But rejection by any of the four most prominent states-Massachusetts, New York, Pennsylvania, or Virginia would have doomed the Constitution

14. New York was special • New York City was the seat of the national government during ratification • New York state had a powerful executive branch. The governor would lose power if a strong national government formed. • Alexander Hamilton was from New York and led its Federalist faction.

15. Hamilton’s Problem • The Anti-Federalists were led by “His Excellency,” Governor George Clinton. • Clinton had a vested interest in preventing the formation of a strong national government. • Clinton’s popularity as “father of New York” made him a formidable rival.

16. Hamilton’s Strategy • Hamilton focused on behind the scenes political manipulation to build support among political elites. • He also proposed a series of essays designed to persuade the public of the Constitution’s value. • These essays served as a “debaters handbook.”

17. The Federalist Papers • A set of essays, written by Hamilton, James Madison, and John Jay, and published in New York newspapers under the pseudonym Publius. • During the ratification controversy, these essays were circulated nationally. • The essays linked opposition to the new Constitution with hot-headed liberals (Patrick Henry) and those with a vested interest in maintaining a weak government (George Clinton).

18. Four Themes of the Federalist Papers • An explanation of the blessings of national government • An indictment of the Articles of Confederation for failing to provide such a government at the national level • An analysis and defense of the Constitution as an instrument of federalism and governance • An exposition of the costs and benefits of freedom.  They are essays designed to persuade

19. Federalist #10, Madison • This essay explains how the Constitution protects against a tyranny of the majority, without resort to dictatorship. • The key to understanding Madison’s argument is that the tyrant is an individual or group who, if given power, would harm others in pursuit of self-interest. • A faction is the term to describe an individual or group seeking that power.

20. Federalist #10. Factions • “There are two methods of curing the mischiefs of faction: the one, by removing its causes, the other, by controlling its effects.” • To control the causes of faction, it would be necessary to either destroy liberty or to give every citizen the same opinions and interests. • Because destroying freedom is unacceptable and controlling opinions impossible, to cure the “mischiefs” of factions, it is necessary to control their effects.

21. Federalist #10. Enlightened Statesmen “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”

22. Federalist #10. Minority Factions • A minority faction can be controlled through elections. • The minority “may clog he administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.”

23. Federalist #10.Majority Factions • “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” • To control such a majority, factions “must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” • An “extended republic” is better able to control factions than a set of smaller republics, because it is more difficult to gain a majority.

24. Importance of Federalist 10 • Faction = Party • Federalist 10 can be interpreted as an essay on how difficult it is to put together a national party. • Gives rise to the notion of parties as umbrella organizations, or coalitions of individuals with distinct interests and without a common agenda. • Madison’s Behavioral Assumptions • Note that Madison’s assumptions about human behavior closely parallel those of rational choice theorists.

25. Federalist #51, Madison • Why do we need the separation of powers? • Because individuals given power will use it for personal advantage. • “If men were angels, no government would be necessary.”

26. Federalist #51. • A constitution must balance two aims: sufficient capacity for governance and effective control over the leadership. • “In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

27. Federalist #51, Checks and Balances • A system of checks and balances was what Montesquieu meant, rather than a strict separation of powers. • To function effectively, the system of checks and balances requires multiple branches of government. • Each branch must be independent from the others. • Each branch must sufficient power to hold the others in check.

28. Federalist #51. Conditions for Independence • “Each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of members of the others.” • But, some deviations from this principal could be tolerated, especially for the judiciary whose lifetime appointments ameliorate any dependency.

29. Federalist #51. “But the greatest security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and motives to resist encroachments of the others, the provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

30. Federalist #51. Legislative Power • In a democracy, legislative authority is predominant. • The division of the Congress into two different branches curbs the power of the legislature. • Each branch has a different constituency-Senators answers to their state, the House to their district. • Senators have longer terms in office making them less responsive to their constituents, House members have shorter terms making them more responsive.

31. Importance of Federalist 51 • Status Quo Bias: System of checks and balances protects minorities when out of power and not already oppressed; however, checks and balances also limit opportunities for change. • Exacerbated by super-majorities needed to achieve cloture in the Senate (filibuster) • Makes Accountability Difficult: if multiple sources for responsibility, who is accountable for good and bad times? • Responsible parties + no ticket-splitting creates disciplined national parties and unified partisan control of government offer a vehicle to overcome system of checks and balances.

32. Federalist #51. Executive Power • The weakness of the executive requires that this branch be fortified. • The veto power strengthens the president in relation to the legislature.