1783 1788 constitutional foundations
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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

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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


1783 1788 constitutional foundations

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


Founding fathers young men

Founding Fathers: young men


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.


Debate topic war powers

Debate topic: war powers


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


Prop 85 vote by gender

Prop 85: Vote by gender


Prop 85 vote by party affiliation

Prop 85: Vote by party affiliation


Prop 85 2006 blue no red yes

Prop 85: 2006blue = “no”red = “yes”


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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