Chapter 2 The Constitution

Chapter 2 The Constitution

Locke defined tyranny as monarchs making use of the power they possessed for what ends? According to Locke, who are the true rebels of a revolution? What are the four ways a tyrant dissolves government? Questions for Locke

Thomas Hobbes – Leviathan – 1651 Largely dismissed as Godless for his criticisms of organized religion. Saw the “state of nature” as a “state of war of every man against every other man” which he described as “solitary, poor, nasty, brutish, and short.” (anarchy) Hobbes, Locke, and Rousseau (the contractualists)

Hobbes saw the evils of having a monarch as preferable to the lack of government. Social contract: Individuals relinquished certain liberties in order to gain security. This is what we call the “consent of the governed.” This is how we develop societies. I am not free to murder or rob my neighbor, nor is my neighbor free to murder or rob me. Benjamin Franklin – “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Franklin did not question the necessity of government or a civilized society with a rule of law. His statement was made in the context of “taxation without representation” as the British government taxed the colonies to defray the cost of their war with France (the defense of the colonies). Hobbes

Two Treatises of Government – 1689 – The Second Treatise had greater impact on the theoretical political development of the United States. Locke’s theories are reflected in the Declaration of Independence and the US Constitution. Among these are life, liberty, and property, and the separation of church and state. Locke believed in citizen legislatures, advocated a census (required by the Constitution), and believed in the legislature as a check to the “power always in being”. This power was described as the executive and might be understood as a monarch, but could more readily be seen today as the bureaucracy. John Locke

Jean Jacques Rousseau – TheSocial Contract – 1762 A kinder and gentler take on Hobbes and Locke, perhaps Utopian in his thinking. Saw it as necessary that individuals submit to the “general will.” Saw republican government as being the most desirable. Individuals, having played a part in the making of laws, should submit to the authority of those laws. Rousseau is sometimes critiqued as advocating an authoritarian regime or yielding to the tyranny of the majority if taken to the extreme. General will vs social norms? Rousseau

“Sets up his own arbitrary will in place of the laws.” (Basically supplants the legislature) “Hinders the legislative from assembling in its due time, or from acting freely.” Prevents the legislature from acting. “The electors, or ways of election, are altered.” Gatekeeping, voter ID laws, stacking the deck in your favor. “The delivery also of the people into the subjection of a foreign power.” Would this also be true of a domestic oligarchy? 4 ways a tyrant dissolves a government

Sec. 205 Locke agrees with Hobbes that a single tyrant may be preferable to an oligarchy or faction whose whims may do more damage in their number. Sec. 220 Where they differ is that Hobbes did not see citizens as having the right to revolution, whereas Locke did. Locke saw the tyranny of a monarch or a legislature that is arbitrarily destructive of the life, liberty, and property of its citizens as already being in rebellion of the social contract. As such, it is the responsibility of the citizens to develop a new form of government more in line with the needs of the society for whom it was created. “…it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” US Declaration of Independence Social contract theory

Sec. 212 Laws made by illegitimate actors, the people are not bound to obey. Judges and bureaucrats. • Sec. 218 “Where the laws cannot be executed it is all one as if there were no laws.” A weak bureaucracy. • Sec. 222 “He acts also contrary to his trust, when he either employs the force, treasure, and offices of the society, to corrupt the representatives, and gain them to his purposes; or openly preengages the electors, and prescribes to their choice, such, whom he has, by solicitations, threats, promises, or otherwise, won to his designs; and employs them to bring in such, who have promised before-hand what to vote, and what to enact.” • Consider this in the context of Grover Norquist, lobbyists, political parties and special interests. Discussions for Locke

Autonomy: The ability to act independently of external forces. Understood as both domestic and international. The prince should not give up power to foreign or domestic influences Capacity: The facility or power to produce, perform, or deploy. “Where the laws cannot be executed it is all one as if there were no laws.” Legitimacy: The popular acceptance of a governing law or régime as an authority. Understood as both domestic and international. “Laws made by illegitimate actors, the people are not bound to obey.” If international actors do not see a government as legitimate they will be unable to negotiate treaties or trade. IE China from the takeover of Mao to the opening of trade under Nixon. State power defined

Goal is to bring gold and silver (specie) into the economy. This allows the economy to expand and become more productive. Nearly all advanced countries (including the newly industrialized East Asian nations) practiced a form of mercantilism on the road to industrialization and development. British mercantilism was codified in the Navigation Acts requiring goods imported to or exported from colonies to move through Britain on British ships. This series of laws was followed by the Molasses Act, the Sugar Act, the Tea Act, and the Stamp Act. • Trade and taxation: • Some economists will argue that the Revolution was not fought over economic matters. • The Navigation Acts offered both advantages and disadvantages that overall brought a balance, however, they advantaged some industries while disadvantaging others. • The most fervent leaders of the rebellion tended to come from disadvantaged industries while those from advantaged industries tended to remain loyal to the King or took a more neutral stance. Mercantilism

Bounties were similar to tax breaks today for the production of needed materials – farm subsidies, oil subsidies, etc. • “Fish, furs, and firs”–a bounty provided for raw materials and Naval stores. Masts and turpentine were needed to provide materials for British ships. • Many of the producers of these goods moved North to Canada. • Indigo, cotton, and rice – the indigo and cotton were needed for textile manufacturing in Britain. These were the industries of the Carolinas and Georgia who initially remained fairly neutral to the issue of independence . Navigation Acts and bounties

Requirements of shipping solely to Britain, on British built ships, with British crews. • This hurt merchants (Alexander Hamilton) and shipbuilders (John Hancock) in the New England states. Mostly in Boston and New York. • This also left tobacco farmers subject to the terms and conditions dictated by a monopsony (a single buyer facing the market) purchaser. • George Washington, Thomas Jefferson, James Madison, Richard Henry Lee, and nearly every other delegate from Virginia. Disadvantaged industries

The purpose of colonies in a Mercantilist system is to provide raw materials for manufacture, and a market in which to sell those manufactured goods. Americans were prevented from competing with British companies in large scale manufacturing. This hurt venture capitalists and some in the trades – Paul Revere There were a number of recessions and boycotts of British products (primarily in the New England states) in the years leading up to the Revolution. Disadvantaged industries Food for thought: Would Sam Adams, a brewer and leader of the tea party, and John Hancock, a wealthy shipper, benefit financially from the dumping of a shipload of tea? Was this an early example of astroturfing?

Required that legal documents and publications had to be printed on paper with a legal stamp produced in England. This brought with it not only the tax from the stamp itself, but monopoly pricing for the paper as well. This hurt lawyers (of which a large proportion could be found within the delegation, including John Adams) and publishers (Benjamin Franklin and Thomas Paine). Stamp Act of 1765

When the advantages and disadvantages of the system are combined, the colonies as a whole appear to break even. While some got wealthy from the system, others were financially disadvantaged by it. Was there an economic cause behind the American Revolution? What do you think?

British believed the Parliament represented the best interests of all British citizens. From John Locke – a census should be taken at regular intervals to ensure adequate representation of the population (understanding regional diversity of needs). Census (enumeration) is required by the US Constitution, Article 1, Section 2. Taxation without representation

Founding virginians • Virginians were in a position of bridging the gap between the disadvantaged Yankee merchants and the advantaged Southern plantation owners. This is, in large part , why we recognize so many of their names. • The economic systems of the various colonies played an important role in the institutional arrangements of the Constitution. • George Washington • Patrick Henry • Thomas Jefferson • Richard Henry Lee • James Madison • James Monroe • In fact, 4 of the first 5 presidents were from Virginia.

Failure. Found states printing and coining their own money of questionable value. “Economic conflicts and boundary disputes” between states. Contradictory duties that allowed for arbitrage. No strong central government Pennsylvania – Virginia War??? I checked this and found evidence of a boundary dispute, but no evidence of armed hostilities Articles of confederation

Shays rebellion

Lawyers, merchants, and shipbuilders (LMS) hurt by the Navigation Acts Western farmers were subsistence farmers in a barter economy. Not taxed because you can’t squeeze blood from a stone. Lexington and Concord – Adams and Hancock. LMS had the money to finance the war After the revolution, LMS in Boston made the new rules under new sovereignty. John Hancock was the first governor of Massachusetts. Priority to pay the debt back through property taxes. Taxes must be in specie. Must own land to vote. Farmers have to borrow specie from LMS to pay taxes. End up losing land to LMS and lose the right to vote. Follow the money

It is in the context of Shay’s Rebellion that Jefferson wrote to a friend “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Context is everything

Appear to be backing the disenfranchisement (taking away the right to vote) of voters and the shifting of tax burdens from the rich to the poor. Is there a contradiction between the policy positions of the tea party and their use of Jefferson’s quote? Tea party republicans

Some see Shay’s Rebellion as prompting a desire to develop an Army to put down rebellions in the former colonies. Others see it as a need to protect citizens from potentially oppressive state governments. Either way, it was a tipping point that prompted a call for the dissolution of the Articles of Confederation (technically treasonous) and develop a system with a stronger central government Why constitution, why now?

Nothing agreed to until everything is agreed to. In negotiating legislation many policies are proposed, few are agreed to. Allowing the public to hear every idea discussed will turn the public against it before a final product is produced due to confusion over what has and has not been included. I.E. Healthcare reform (during both the Clinton and Obama Administrations) and lifting the debt ceiling. confidentiality

An experiment whose model had been laid down by Locke, Montesquieu, and Machiavelli. The balance of power was established between large and small states, as well as between slave states and free states Less than one hundred days

Virginia Plan – Favored by larger states: one house based more on population. New Jersey Plan – favored by smaller states, one house with one vote for each state. The Great (Connecticut) Compromise – Lower house based on population and upper house with two votes each state. Roughly 64 and 26. Three-fifths Compromise – Slaves counted as 3/5 of a person for representation purposes. Gave Southern states more power in the House of Representatives. The House has the purse strings because the South was taking on the war debt of the North. Did not feel the public was sufficiently competent to elect the executive, opted for a republic rather than a democracy Compromises (know these)

Enumerated powers – those powers that are specifically listed, or enumerated. Implied powers – the use of the necessary and proper clause to legislate in areas that are not enumerated, but have a relationship to an enumerated power. IE the courts used the federal government’s power to regulate interstate commerce to address segregation at bus stops in the South. The right to privacy is a right that is implied by the enumerated rights of the 1st, 3rd, 4th, 5th, and 14th amendments. powers

Full faith and credit clause – recognize the laws and judicial proceedings of other states. Supremacy clause – Federal laws and treaties supersede state law. Consider this: The Defense of Marriage Act allows a state to ignore the judicial proceedings of other states and to ignore treaties of reciprocity with other countries to recognize legal marriages from other countries. Does this make the Defense of Marriage Act unconstitutional on two counts? Clauses

With the pseudonym “Publius” these articles were written by Federalists James Madison (4th President of the US), Alexander Hamilton (1st Secretary of the Treasury), and John Jay, (1st Chief Justice of the Supreme Court) The Federalist Papers

Ratification of the Constitution was not assured and hotly debated. It required the states to give up some amount of sovereignty to a more powerful federation than previously existed. Similar to England giving up sovereignty to the EU or the US giving up power to a confederation under NAFTA or the UN. The Federalist papers were arguments for ratification of the new Constitution through advertising its merits. This debate took place in New York papers, by the time New York ratified the point was moot. Federal courts attempting to determine the intent of the framers will often refer to these documents.

State legislatures cite this Amendment when they attempt to shift more power over to the states. However, the 10th Amendment reserves these rights for the states OR the people. The 10th amendment is most commonly cited by those attempting to limit the rights of a group of individuals. The ending of slavery, unions, civil rights activists, access to abortions, gay rights, and voting rights have all come under fire by groups advocating for the rights of states. 10th Amendment

Marbury v. Madison (1803) Know its name A case about power and the Supreme Court. Congress had expanded the power of the Supreme Court in the Judiciary Act of 1789 expanding their role as a court of original jurisdiction. As the case was being originally brought to the court under the Act, the court ruled that the Act was unconstitutional, thereby expanding the Court’s power further into the realm of judicial review Judicial review

Things the framers could not have anticipated and did not address An Air Force The Internet (the USPS would have seemed sufficient) Television, radio, and cel phones Medical “miracles”. Automatic assault rifles with 100 round clips Technological change

Chapter 2 The Constitution