The Constitution

1. The Constitution Chapter Two

2. The Road to Independence • Legacy of self-government • Role of popularly elected legislature • Control of purse strings • Dominance of other institutions • Abundance of experienced politicians • Knowledge of constitutional writing • Home rule • Strains during the French and Indian War • Albany Congress

3. Dismantling Home Rule • At the end of Seven Years’ War Britain broke • Colonists required to share the burden (taxes) • Britain asserted power to impose taxes • Also began to violate home rule in colonies • Stamp Act • Imposed tax on all printed materials • First non-self-imposed tax for the colonies • Organized resistance of ordinary citizens • Boston Tea Party

4. The Continental Congresses • First Continental Congress • Passed resolutions condemning British taxes and administrative decrees • Declaration of American rights • “committees of observation” • Import boycotts • Provided base for statewide conventions when colonial assemblies could not meet

5. The Continental Congresses • The Second Continental Congress • War had broken out in spring 1775 • Lexington and Concord • No legal authority to conduct war, but coordination was required • Instructed the conventions to reconstitute themselves as state governments based on republican principles • Most states adopted bicameral legislatures and governorships • Issued the nation’s first bonds and established a national currency

6. The Declaration of Independence • In January 1776 Thomas Paine’s Common Sense published • Only in the creation of an independent republic would the people find contentment • In June of 1776 Richard Henry Lee called for creation of a new nation separate from Britain. • Committee to draft resolution • Thomas Jefferson • Declaration of Independence • Signed by each member of the Second Continental Congress

7. America’s First Constitution: The Articles of Confederation • America now an independent nation • Second Continental Congress proceeded to create a new government • Drafted the nation’s first Constitution – the Articles of Confederation • Confederation • highly decentralized • national government limited authority from the states

8. The Articles of Confederation • Created a new, permanent Congress • each state received one vote • Major laws required the endorsement of 9 of 13 states • Amending the Constitution, required unanimous agreement • Delegates sought to replicate the home rule they had lost • Suspicious of national authority

9. The Confederation at War • States • Chiefly responsible for recruiting troops and outfitting them for battle • National military command • Organize fighting force • Congress • Coordinator • Could borrow money, but could not tax • No administrative branch; so Congress had to do all the work, including requisitioning the army • Many difficulties during the war • Most difficult: Congress labored under a constitution designed to frustrate national action

10. The Confederation’s Troubled Peace • A war-torn economy • Trade barriers at home and abroad • Popular discontent (Shays’s Rebellion)

11. Drafting a New Constitution • The 55 delegates meeting in Philadelphia in 1787 • Shared experience of war and its aftermath • Philosophical influences • Popular sovereignty—Locke • Sir Isaac Newton • Charles, Baron de Montesquieu • David Hume • James Madison’s “Vices of the Political System of the U. States” • Getting down to business • Patrick Henry “smelt a rat” and resigned • Convention opened May 25, 1787 • By near unanimous agreement, Washington to preside • Madison in the front row taking notes

12. The Virginia Plan • Madison and nationalists’ blueprint • Bicameral legislature • Members of the lower chamber apportioned among the states by population and directly elected. • Lower chamber would elect members of the upper chamber from lists generated by the state legislatures. • Veto power over states • Use of military power if states did not fulfill obligations • Council of Revision • Opposition formed • States’ rights states and small states feared loss of influence.

13. The New Jersey Plan • Opposition coalesced around an alternative • Proposed by N.J. delegate, William Paterson • Hastily drafted response • Failed to propose the organization of the executive and judiciary • Kept same composition and selection of Congress as it functioned under the Articles, BUT

14. The New Jersey Plan • Did give Congress the power to tax • Also allowed a simple majority to enact national policy rather than a supermajority • Stalemate over the plans • Debate raged for weeks • Delegates agreed to send the question of Congress to a committee • Madison not named to the committee

15. The Great CompromiseFashioning the National Legislature • Each side got one of the two legislative chambers fashioned to its liking. • The upper chamber (Senate) would be composed of two delegates sent from each state legislature who would serve a six-year term. • Madison’s population-based, elective legislature became the House of Representatives. • Unanimous agreement rule gone. • Now only majority required to pass legislation • Article 1, Section 8 • commerce clause and the necessary and proper clause • Madison’s 180-degree turn • Support for genuine separation of powers

16. Designing the Executive • Choices ranged between “elected for life” at one end and the model of state governors who had been given very limited powers. • Example of an ideal president: George Washington • How did they make the executive independent yet limited? • Limited scope of authority • take care clause • Confirmation of appointments and ratification of treaties by Senate • Gave the president the ability to veto legislation • Required a supermajority of each house to override a presidential veto • How would they elect the president? • Electoral college

17. Designing the Judiciary • Less time designing the new federal judiciary, BUT • Supreme Court given final jurisdiction between national and state differences • Supremacy clause • They did debate over two questions: • Who would appoint Supreme Court justices? • compromise • And should a network of lower federal courts be created or should state courts handle all cases until they reach the federal court? • Congress • Judicial review • Marbury v. Madison (1803)

18. Substantive Issues • Foreign policy and trade • Foreign policy under the president • Congress given explicit legislative authority to regulate commerce • National government responsible for defense and security • Interstate commerce • Article 1, Section 10 prohibits state discrimination against other states in various commercial endeavors • Slavery • Importation of slaves • Fugitive slaves

19. Amending the Constitution • All agreed on the need to amend the Constitution in the future, but how generated some argument: • Delegates from small states insisted on endorsement of amendments by a large number of states. • Nationalists argued that the citizens alone should approve any change. • No majority for either idea. • Compromise • Constitution allows an amendment to be proposed either by two-thirds vote of both houses of Congress or by an “application: from two-thirds of the states.” Enactment occurs when three-fourths of the states, acting either through their state legislatures or in special conventions, accept the amendment.

20. The Fight for Ratification • “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” • This statement did two important things. • It removed the unanimous assent rule of the Articles of Confederation. • It withdrew authority from the state legislatures, which might have misgivings about surrendering autonomy.

21. The Federalist and Antifederalist Debate • Antifederalists • Argued that only local democracy could approach true democracy • Fear of tyranny and the invasion of citizenry’s rights • The influence of The Federalist • 85 essays written by Hamilton who wrote the most; Jay (who wrote five); and Madison (who wrote the best) • First appeared in New York City newspapers • Jefferson called them “the genuine meaning” of the Constitution

22. Theory Underlying the Constitution • Two of the Federalist papers (No. 10 and 51) focus on the fundamental problem of self-governance. • We are not “angels” as Madison observed… • How do we get a government of non-angels not only to govern the governed, but to “govern” itself as well?

23. Federalist No. 10 • Responds to the strongest argument of the Antifederalists -- that a “large Republic” cannot long survive • Discusses the negatives of faction defined as • “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

24. Federalist No. 10 • Madison then identifies two ways to eliminate factions: • authoritarianism • conformism • Neither is acceptable. • So if the causes of factions cannot be removed, then one must control their effects rather than snuffing out liberty.

25. Federalist No. 10 • Minority and majority factions controlled in different ways. • Democracy does not allow minorities to dominate. The problem lies with majorities. Direct democracy would allow for majority usurpation of minority rights. • However, a representative government would: • dilute factious spirit; introduction of the size principle • negate the ability of potential majorities to attempt any form of collusion • pluralism

26. Federalist No. 51 • A more mechanism approach is taken in Federalist No. 51. • separation of powers • checks and balances • Ambition is made to counteract ambition… • Explores how and why the governmental system that emerged might actually work

27. The Constitution: Born of Sweet Reason or Politics? • Many of the Constitution’s provisions have no theoretical rationale • How does one justify the three-fifths rule, the malapportioned Senate, or the Byzantine procedures for electing a president? • Products of compromise • Did Madison achieve this goal of building a national society that would prevent majority factions from tyrannizing local minorities?