The Constitution and the Federalist Papers

The Constitution and the Federalist Papers POLS 21: The American Political System “The Constitution does not grant rights, it recognizes them.” —Jason Laumark

Why the Articles of Confederation Failed • The Articles did not give the national government coercive power over the states (e.g., the power to tax). • The Articles had no chief executive and no court system. • The Articles did not allow the national government to regulate interstate and foreign commerce. • The Articles did not provide centralized control over foreign relations. • Most laws required 9/13 votes to pass. • The Articles could not be amended without unanimous consent.

Federalists and Anti-Federalists are engaged in a tug-of-war The state of Connecticut is represented by a wagon. The driver warns: “Gentlemen this Machine is deep in the mire and you are divided as to its releaf…” A house divided against itself cannot stand.

Shays’s Rebellion, 1786 “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical… It is a medicine necessary for the sound health of government.” —Thomas Jefferson

Why did the Articles of Confederation create such a weak national government? King George III Shays’s Rebellion STRONG WEAK

…it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several States be held in Philadelphia for the sole and express purpose of revising the Articles of Confederation….

John Jay James Madison Alexander Hamilton

FEDERALIST #10 Madison on the "Mischiefs of Faction" Remove the causes? OR Control the effects?

In Madison’s “republican remedy,” government is divided time and time again in order to control the influence of faction by preventing a dangerous concentration of power. BRANCH OF GOVERNMENT Executive Judicial Legislative House Senate Federal POWER LEVEL OF GOVERNMENT State Local

Cross-cutting cleavages block minority factions

Madison’s “Republican Remedy” “Extend the sphere” to increase the diversity of interests competing for power and attention Majority Madison was not terribly worried about minority factions… Should he have been? A system of representation filters out selfish interests Checks and balances allow “ambition to counteract ambition” FACTION Separation of powers prevents a concentration of power A system governed by majority rule means that minority factions will be outvoted Minority

Factions Today “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of citizens, or to the permanent and aggregate interests of the community.” —James Madison, Federalist No. 10 • Majority? • Minority?

Social contract theory Separation of powers Checks and balances Federalism Guiding Principles “The United States Constitution has proven itself the most marvelously elastic compilation of rules of government ever written.” —Franklin D. Roosevelt

Understanding the Constitution • Which branch of government did the Framers fear most? • Is this a democratic document? Has it become more democratic over time than the Framers intended? • How should we interpret the Constitution? In a loose way or a strict way? • Should we venerate the Constitution? How powerful is it as a written document?

Which branch of government did the framers fear the most?

ARTICLE 1 Section 1. All legislative Powersherein grantedshall be vested in a Congress of the United States,which shall consist of a Senate and House of Representatives...

ARTICLE 1 Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes... To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures... To constitute Tribunals inferior to the supreme Court... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions...;--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof...

ARTICLE II Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector...

ARTICLE III Section 1 The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office...

Is this a democratic document? PRESIDENT Four year terms Electoral College nominates JUDICIARY Lifetime terms confirms State Legislatures SENATE Six-year terms VOTERS HOUSE OF REPRESENTATIVES Two-year terms

How should we interpret the Constitution?

Things Not in the Constitution • Political parties • The president’s cabinet • Executive privilege • The right to privacy • The word “slavery” • Judicial review • The right to vote • Separation of church and state

“There are those who find legitimacy in fidelity to what they call ‘the intentions of the Framers.’ In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them… But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific contemporary questions… We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening years of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” —Justice William J. Brennan, Jr. (1906-1997)

"…[A] major check on judicial power, perhaps the major check, is the judges’ own understanding of the proper limits to that power… Once adherence to the original understanding [of the Constitution] is weakened or abandoned, a judge… can reach any result… As we have seen, no set of propositions is too preposterous to be espoused by a judge or a law professor who has cast loose from the historical Constitution.“ — Judge Robert H. Bork

Judicial Activism vs. Judicial Restraint When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client. The judge’s only obligation — and it’s a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires. —Samuel Alito I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat. —John Roberts

If the concept of “original intent” were applied today, what would the result be? • Affirmative action • Abortion • Capital punishment • Gun control • School prayer • Campaign finance • Health care

Is the debate of judicial activism vs. judicial restraint purely political? • Clinton impeachment • Bush v. Gore (2000) • Health care

The Impeachment of President Clinton • “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (The U.S. Constitution, Article II, Section 4) . • The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself (Federalist #65).

Bush v. Gore (2000) Jeffrey Toobin, writing for The New Yorker, says that Bush v. Gore was no novelty, despite the Court famously declaring it was a single-use decision. "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preeminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles.”

The Affordable Care Act • The Commerce Clause describes an enumerated power listed in Article I, Section 8 of the U.S. Constitution. It states that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Should we venerate the Constitution? “We must recognize that substantial responsibility for the defects of our polity lies in the Constitutional itself.” Sanford Levinson Insufficiently democratic The Constitution Significantly dysfunctional

Even if you support having a Senate in addition to a House of Representatives, do you support as well giving Wyoming the same number of votes as California, which has roughly 70 times the population?

Are you comfortable with an Electoral College that, among other things, has since World War II placed in the White House five candidates—Truman, Kennedy, Nixon (1968), Clinton (1992 and 1996), and Bush (2000)—who did not receive a majority of the popular vote?

Are you concerned that the president might have too much power, whether to spy on Americans without Congressional or judicial authorization or to frustrate the will of the majority of both houses of Congress by vetoing legislation with which he disagrees on political, as opposed to constitutional, grounds?

Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences as to their successors?

Should we venerate the Constitution? “What effect does it [the Constitution] have on the quality of our lives? And the answer to that, it seems to me, is, Very little. The Constitution makes promises it cannot keep, and therefore deludes us into complacency about the rights we have. It is conspicuously silent on certain other rights that all human beings deserve. And it pretends to set limits on government powers, when in fact those limits are easily ignored.” • Racial equality • Free speech • Economic justice • Gender equality • War powers Howard Zinn

What is federalism? Federalism is a form of government in which power is divided between national and state government. Each has its own independent authority and its own duties.

Why Federalism? • Federalism checks the growth of tyranny • Federalism allows unity without uniformity • Federalism encourages experimentation • Federalism provides training grounds • Federalism keeps government closer to the people

States: Meth Labs of Democracy! http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---missouri http://www.thedailyshow.com/watch/thu-february-20-2014/the-states--meth-labs-of-democracy---kansas--again-

The Federal Division of Powers

Election Reform Should the United States nationalize election rules and procedures?

Education Reform Should the federal government attempt to equalize school expenditures across states (similar to Vermont’s own Act 60)?

Inequality in Public School Expenditures

The Constitution and the Federalist Papers