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THE CONSTITUTION

Historical background of, Writing of, and Content of. THE CONSTITUTION. Idea of “higher law”, limited government, constitutional government Procedural v. policy document

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THE CONSTITUTION

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  1. Historical background of, Writing of, and Content of THE CONSTITUTION

  2. Idea of “higher law”, limited government, constitutional government Procedural v. policy document The longevity of the US Constitution – why?---Ideal (Goldilocks) level of detail & constraint---Major exceptions: Articles of Confederation, Civil War Problems w/the Articles of Confederation govt. that led to calls for revision/replacment WHAT IS A CONSTITUTION?

  3. 1.) Ancient Theories/Historical Experiences--Athenian experiment w/direct democracy--Roman ideas of representative and mixed govt.--Biblical ideas: antipathy toward secular govt., idea of higher law, ambiguous NT messages 2.) The British Tradition: despite lack of single-document written constitution, UK pioneered the idea of “constitutional (limited) monarchy” Influences on founders @ constitutional convention

  4. British working model of “mixed govt.”: monarch, H of Lords, H of Commons 3.) Contemporary Political Philosopherssocial contract theory: Hobbes, Locke, RousseauMontesquieu’s separation of powers 4.) The colonial experience --”benign neglect” and autonomy before Seven Years War--appointed exec, elected legislatures--Britain cracks down: more taxes  more resistance - more repression --Specific concerns about govt. repression in US Const. and Bill o’ Rights Influences on founders Cont’D

  5. Cumulative conclusions from all these influences1.) They wanted a stronger, more effective govt. than the Articles had provided, but not too strong2.) Mixed, somewhat decentralized govt. was good for protection of liberties and to avoid “radical” policies3.) Some popular influence, but not a direct democracy INFLUENCES ON FOUNDERS CONT’D

  6. 1.) Secrecy, and All-or-Nothing Proposals, can help the advocates of change (but can provide focal points for opposition too!)2.) Politics is about BOTH principles and practical self-interest---Conventional view of Founders vs. Beard’s Economic Interpretation 3.) Bundles of compromise leaves no one totally happy, no one totally unhappy:e.g. Great Compromise, 3/5 Compromise, Electoral College, Federalism THE PROCESS OF DRAFTING CONSTITUTION: ILLUSTRATES POLITICAL LESSONS STILL RELEVANT TODAY?

  7. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.” --James Madison, Federalist Papers #51TWO MAJOR GOALS OF THE CONSTITUTION1.) Create a more effective, powerful, national government2.) Ensure protection of individual and minority rights CONTENT OF THE CONSTITUTION

  8. I. Increasing Power and Effectiveness of National Govt. 1.) More Federal authority in taxes, establishing currency, interstate commerce, foreign policy—even patents & bankruptcy law2.) “Elastic” (a.k.a. “necessary & proper”) clause gives Congress additional “implied” powers (1819 McCulloch v. Maryland)3.) New, independent executive branch that could act quickly, decisively, and secretly4.) New Federal judiciary and Supremacy Clause 5.) Public directly elects House of Representatives—gives nat’l govt. more legitimacy Content of the constitution(Continued)

  9. II. Multiple layers of protection for individual liberties and minority rights, to guard against “ToM”1.) Diverse, pluralistic “extended republic” (Federalist 10)—w/cross-cutting, rather than reinforcing cleavages2.) Horizontal separation of powers w/checks and balances---branches separated by time, geographical locus, and function 3.) Federalism (vertical sep. of powers): states retain most impt. Functions: criminal law, family law, education 4.) Explicit limitations on Federal govt. powera.) In the text of the original Constitution (habeas corpus, no bills of attainder, no ex post facto laws, no titles of nobility)b.) In the Bill of Rights Content of the constitution contd.

  10. BoR(ratified 1791, 2 yrs. after Const. went into effect) First: freedoms of speech, assembly, religion, petition, pressSecond: guns, Third: no quartering troopsFourth: search and seizureFifth: no self-incrimination, takings clause, no double jeopardy, due processSixth: trial by jury, rights to confront witnesses and obtain counselEighth: no cruel and unusual punishmentNinth: other rights not precludedTenth: powers not given to Feds go to states and/or individuals CONTENT OF CONSTITUTION CONTD

  11. 9/13 states Bypassed state legislatures, put ratification in hands of state conventions elected by the people Federalist v. Anti-Federalist propaganda Some ratification votes very close! RATIFICATION PROCESS

  12. Two different ways of proposing amendments Two different ways of ratifying amendments Types of Amendments (after BoR)1.) expanding citizenship and voting rights (13th, 14th, 15th, 19th, 23rd, 24th, 26th)2.) refining presidential election/inaug system (12th, 20th, 22nd, 25th)3.) creating Federal income tax (16th)4.) direct election of Senators (17th) 5.) congressional pay raise (27th) Deadlines for ratification: yes on ERA, no on pay raise AMENDMENT PROCESS

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