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1783-1788 Constitutional Foundations. Richard Jensen Imperial TAH. Summary: USA gets Strong National Government. Nationalist sentiment led by veterans Washington; Alexander Hamilton (NY) Long term vision of great nation Philadelphia: secret convention 1787 Terms of Office: 2-4-6 years

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1783 1788 constitutional foundations

1783-1788 Constitutional Foundations

Richard Jensen Imperial TAH

summary usa gets strong national government
Summary: USA gets Strong National Government
  • Nationalist sentiment led by veterans
    • Washington; Alexander Hamilton (NY)
    • Long term vision of great nation
  • Philadelphia: secret convention 1787
    • Terms of Office: 2-4-6 years
    • Supreme Court; lifetime job
  • Ratification Debates
    • Federalist papers
    • Antifederalists & Bill of Rights
  • YES: need strong gov\'t
    • Washington’s leadership
    • Bill Rights promised soon
critical era of 1780s
Critical Era of 1780s
  • Theory 1: Confederacy too weak
  • Theory 2: it’s OK
  • Evidence:
    • World at peace and no direct threats
    • USA very weak government; cannot pay its bills because cannot collect taxes
problems with confederation
Problems with Confederation
  • Very weak central government
    • No money, no taxes, no president
  • Dangerous world needs strong government
    • No wars in 1780s– but major wars in Europe in 1760s and 1770s, and again in 1790s
  • 13 separate states feud with each other
  • Spirit of nationalism requires strong country
  • Solution: write a new Constitution
main idea republicanism
Main Idea = Republicanism
  • Get rid of aristocracy
  • Equal legal rights
  • Political power (vote) limited to
    • Independent
    • Virtuous
  • Strong sense of civic duty
  • Hatred of corruption
england and europe
England and Europe
  • Aristocracy: aristocrats own and rule the country
  • Kingdom: King owns and rules (and controls aristocrats);
    • France; “absolute monarchy”
    • Britain: Constitutional Monarchy
  • Republic: the people are sovereign, and control gov’t via elections
rights of englishmen
Rights of Englishmen
  • Rule of Law
    • Magna Carta
    • Common law
  • Parliament
  • Taxation
what is corruption
What is Corruption?
  • Use of government power for private purpose
    • For example—cash in your pocket
    • Helping your family (nepotism)
    • Taking bribes
    • No concern for public interest
  • GOAL: minimize corruption
slide11

Railroad Corruption of Congress in Gilded Age

"Serving Two Masters. The sort of thing that will cease when Senator Beck\'s Bill becomes a law." Kepplerin Puck 1880. .

power itself corrupts
Power itself corrupts
  • Solution: divide the power so it cannot gang up on the individual citizen
  • States and national government split powers
  • Rights of individuals protected by courts
  • Congress and President split the power and watch each other all the time
philadelphia 1787
Philadelphia 1787
  • Philadelphia Convention: selected by states; secret
  • Basic goal" perfect machine"
  • Need Strong national gov\'t
  • Seek balance among dangerous forces
  • Leadership: Hamilton, Madison, Wilson
issues 1787
Issues 1787
  • Fear of national power; solution: counterbalances
  • Small states vs Large
  • Sectionalism, North (New England) vs Middle vs South
    • Later: West becomes important
  • Inside the states: cosmopolitan seaports vs inland farms
    • Most states: move capital inland
  • No foreign dangers at the moment; inward-looking
  • Slavery in South
assumptions
Assumptions
  • republicanism: no aristocracy; equal citizens = basic values of new system; every part must support this goal
  • separation of powers at national level
    • executive/legislative/judicial
    • checks and balances: each watch the other
  • federalism = balance between states & nation
    • states to remain sovereign in own sphere
    • State Power; citizenship; courts; taxes; cities;
    • control over election procedures
  • popular sovereignty: people ultimately rule
slavery issue
Slavery Issue
  • Southern states refused to consider abolition of slavery
  • Slaves could not vote BUT they would be counted in population
    • Compromise: only 60% of slaves counted
  • Fugitive slaves to be returned to masters
  • International slave trade could be abolished 20 years later (it was, in 1807)
virginia plan
Virginia Plan
  • Virginia was the most influential state and had the largest population
  • James Madison surprised delegates with complete new plan of government (not just small changes)
  • Proposed very powerful House
    • Weak President (chosen by House)
    • weak Senate (also chosen by House)
  • Small states had little power
new jersey plan
New Jersey Plan
  • Small states would have little power under Virginia Plan so they came up with plan of their own
  • One state one vote, giving small states an advantage
  • Weak national government
great compromise
Great Compromise
  • Take best part of Virginia Plan
    • Strong House
  • Take best part of New Jersey Plan
    • Strong Senate
  • Add strong president
  • Everyone agreed
separation of powers
Separation of Powers
  • Three powers:
    • Legislative (Congress) makes laws
    • Executive: (President) enforces law, commands army
    • Judiciary: vague in 1787 because world has never seen a strong judiciary
  • Ideas based on Montesquieu and his analysis of English way of government
checks and balances
Checks and Balances
  • Danger: everyone tries to get more power and that hurts the people
  • Solution: have opposing powers that will stop and neutralize this
  • Esp: Congress vs. President
  • Also: Supreme Court
congress people
Congress = people
  • Great Compromise: Senate for States, House for Population
    • slaved property counts, not other kind
  • powers; rules; officers; journals
    • Congressmen are independent, not tools of state government
  • House: represent population; power over taxes & spending
    • apportionment by enumeration
  • Senate: too aristocratic? small states demand it;
    • advise and consent to appointments by 51%; Treaties by 2/3
office of president
Office of President
  • President: strong elected executive
    • not a king, or god; not hereditary
    • limited powers, balanced by Congress
    • debate on need, danger of office;
  • Not a king (no inherited offices)
  • Not a puppet of legislature
selecting a republican president
Selecting a Republican President
  • President: strong elected executive
    • not a king, or god; not hereditary
    • limited powers, balanced by Congress
    • debate on need, danger of office;
  • reelection or term limits? 4 years re-electable
    • Washington tradition: only two terms (broken by FDR, 1940)
  • small vs large states; electoral college helps both
  • selection by parties: not expected
    • top vote getter = president, 2nd = VP
    • no majority? Then House picks from top 3
      • only used in 1800 and 1824
    • crisis of 1800 requires clarification
presidential power
Presidential Power
  • executive departments not created but allowed for [Treasury, State, War started in 1789]
  • domestic affairs: limited explicit powers
  • foreign affairs; ambassadors, treaties
    • annex new territory? not explicit
  • appointments to all offices
    • Senate confirmation as check
  • Impeachment process (by House & Senate)
    • pardons: absolute power
war powers
War Powers
  • President as commander in chief
    • no independent army aristocracy
  • shared power with Congress
    • Congress declares war
    • Funds the military, makes rules
  • State militia allowed (but not state armies)
war powers in 21 st century
War Powers in 21st century
  • Declaration of war—obsolete since 1941
  • President makes war by sending in the military
  • 1973: President can make war for 90 days then must ask permission from Congress
    • All president reject the law as unconstitutional
    • Never tested
  • Korea (1950), no permission asked; but permission was given in Vietnam and Iraq
missing topics not discussed at concon
Missing TopicsNot discussed at ConCon
  • 1. not decided: national debt, national capital location
  • 2. not expected: political parties; considered divisive
  • 3. not expected: national media & focus on national affairs & (after 1900) on the President as persona
  • 4. not expected: federal power expands at expense of state power
  • 5. not expected: growth of Supreme Court power (esp 20c)
  • 6. not developed: rights of minorities [Calhoun, 1830s]
  • 8. Not mentioned: Executive orders by president
ratification by all 13 states
Ratification by all 13 states
  • 1. Prestige of Washington, Franklin & other signers decisive
  • 2. anti-federalists: no need for central power; demand bill of rights; fear of President; fear aristocratic Senate
    • localistic outlook & values vs cosmopolitan federalists
    • Insist on Bill of Rights
  • 3. Federalists; Hamilton, Madison & Jay "Federalist Papers”
    • Madison: 10th Federalist & pluralism--the bigger the territory, the more different interests there are, and the less likely to have one dominant interest
bill of rights
Bill of Rights
  • Promised during ratification
  • 10 Amendments adopted 1789 (in effect 1791); Madison as author
  • Protect individual against Nation
  • 9th-10: reserved to states and people
  • 1868: 14th amendment
  • 20c: extend rights so state and local government (inclusing public schools) cannot infringe them
    • Private parties like corporations & private schools still can infringe
1 st amendment speech religion assembly
1st Amendment: Speech, religion, assembly
  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
2 nd amendment guns
2nd Amendment: guns
  • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
4 th amendment privacy
4th Amendment: privacy
  • The right of the people to be secure in their persons, houses, papers, and effects,
    • against unreasonable searches and seizures, shall not be violated,
    • and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Privacy leads to Roe v Wade = abortion right
5 th amendment property
5th Amendment: property
  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Kelo case 2005 on eminent domain
later developments
Later Developments
  • Marshall: Supreme Court makes final decisions
  • later amendments:
    • 13 no slavery; 15- Black vote
    • 14 equal protection
  • National rights extended to cover the states (20c)
  • Right to Privacy (1965)
    • Roe v Wade (abortion rights)
special privilege
Special “Privilege”
  • Double meaning of “privilege”
  • Special advantages given to ascribed status
    • that is, status you are born with (race, gender, ethno-religious, ancestry)
    • violates “equal rights” principle
  • highly contested issue then and now
    • race/racism; “privileged” ethnics
    • affirmative action to counter-act the privilege
who can vote
Who can vote?
  • Ex Confederates (no 1867, yes, 1869)
  • African Americans in South (no before 1867; yes, 1867; no, 1890; yes 1965)
  • Women (yes 1920)
  • Indians on reservations (yes, 1924)
  • Illiterates (no 1900; yes 1970)
  • Non-Citizens (no)
  • Age 18-21 (yes, 1972)
  • Felons (no? debated 2006)
  • Everyone MUST vote??? (yes in Australia, no in USA)
control of people s lives personal liberty privacy
Control of people’s lives?Personal Liberty & Privacy
  • Prohibition (no sales of liquor or beer?)
  • Abortion (illegal to perform one?)
  • Gay Rights (discrimination allowed?)
political status
Person

Citizen

Protected Class

Republican Adult

Basic rights

Basic + US will protect internationally

Indians, ex-slaves; & “minorities” after 1970

Voting Rights

Political Status
why important today
Why important today
  • Supreme Court interprets the Constitution word for word
  • All judges, lawyers, law professors study it very closely
originalism
Originalism
  • Debate today: should we depend more on
    • Original understanding in 1787
    • Needs of America today?
  • Justices Scalia and Thomas
  • Why: to have definite, fixed answers by using the answers of 1787
    • NOT: history is contested ground. Founding Fathers usually argued a great deal and rarely were fully agreed.
force everyone to vote
Force everyone to vote?
  • Civic duty
  • Australia requires it with fine
  • Do we want uninterested people to vote?
  • Should felons voted (convicted criminals who have served their prison time)
    • Only “good” should vote
    • BUT: help re-integrate them into society
abortion issue
Abortion issue
  • Prop 85: parental notification
  • Rights: individual rights based on privacy and 14th Amendment
  • Community rights: to define what is allowed by democratic vote
2006 california voters say abortion should be
2006 California voters sayABORTION SHOULD BE
  • Always Legal 29%
  • Mostly Legal 35%
  • Mostly Illegal 23%
  • Always Illegal 9%

Exit poll data

federalist confusion
“Federalist” confusion
  • Federalist in 1787=1788 = support the new Constitution
    • PRO: Hamilton, Madison
    • ANTI: Jefferson
  • 1792-1816: “Federalist” = political party
    • Pro: Hamilton, Washington, Adams
    • Anti: Jefferson, Madison
readings
Readings
  • Popular:
    • Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787 by Catherine Drinker Bowen (1966) 300 pages
    • Decision in Philadelphia: The Constitutional Convention of 1787by Christopher Collier (1987)
  • A Brilliant Solution: Inventing the American Constitution by Carol Berkin (2003), 200 pages of text, 100 pp documents
online book
Online book
  • The Fathers of the Constitution

By Max Farrand

    • http://www.blackmask.com/books14c/fathcdex.htm
    • Short, accurate, readable
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