Chapter 2: The Constitution AP US Gov’t & Politics, August, 2013

1. Chapter 2: The Constitution AP US Gov’t & Politics, August, 2013

2. So what about rule by the Brits? • The good: • All colonists had same protections as other British subjects under the Magna Carta • The Crown left colonists largely alone except for foreign policy and trade

3. The bad: • England wanted to tax colonists for costs of French & Indian War. Imposed Stamp Act, Tea Act, etc. • Also wanted to appease the Native Americans, and so forbade white people from settling west of the Appalachians

4. The ugly: • No representation in Parliament • Much British food and those ridiculous hats

5. Colonists’ response • Declared independence in 1776. • The Declaration of Independence a lawyer’s brief • Wanted to enlist France’s help • Built on concept of natural (or “unalienable”) rights • Purpose of gov’t is protect natural rights (which includes right to life, liberty, and property) • Gov’t must have consent of the people • Without consent, a little rebellion is okay (per TJ).

6. What was so radical about this? • Concepts of divine right and monarchy tossed out and replaced with belief in natural rights • Laws of nature govern us and predate any gov’t • Gov’t to be based on natural laws, determined by people’s innate moral sense • Notion of consent of the governed • But note that TJ hedged his bets: rebellion okay ONLY when injustices are deeply felt • Limited gov’t now the goal • Gov’t can’t take away someone’s property w/o that person’s consent • Gov’t must provide standing laws, not just make stuff up as it goes • Colonists prepared to go to war over ideas • A “conservative” revolution in sense of colonists trying to conserve what they had. No great class conflicts (yet).

7. A Swing and a Miss: The Articles of Confederation • A “League of Friendship” was formed (what were they, middle-schoolers?). • Why the skittishness to form a real gov’t? • Didn’t want to migrate tyranny to the colonies • Thus kept central gov’t very weak and states strong

8. Some highlights of the Articles of Confederation • Unicameral • One vote per state • No president • No federal courts • No power to regulate commerce • No power to raise money • Amendments required the approval of all 13 colonies The point: strong states, weak national gov’t.

9. So what COULD the gov’t do? • Make peace • Coin worthless money • Appoint army officers (who had to rely on state militias) • Meanwhile, the states were busy protecting the rights of white males. • Burgeoning middle class emerged • Farmers and craftsmen became powerful • Expanded voting rights for middle class, ideas of equality and democracy taking hold

10. Trouble a’brewin… • Colonies in economic turmoil after the war ended in 1783 • Lots of people in debt, central gov’t couldn’t pay soldiers • States often printed their own worthless money and required merchants to accept it • 1786: First efforts to tweak the Articles • But then came…

11. Shays’s Rebellion • Daniel Shays: • war stud • wounded vet • deadbeat • Led attacks on courthouses to prevent foreclosures. • Scared the elites. • Congress couldn’t • raise a militia, • so the elites hired • mercenaries.

12. When the going gets tough… • …the tough throw a party (this time to improve the Articles). • 12 out of 13 states show up (Rogue’s Island the holdout; feared centralizing power and other reforms favoring creditors). • Who attended? 55 white men, 33 of whom were lawyers; the rest wealthy planters and merchants. “[T]he people who own the country ought to govern it.” John Jay, Founding Father

13. Points of general agreement While political philosophies may have differed, the framers agreed on 4 things: • A cynical view of human nature Hobbes: Life in the state of nature is “nasty, brutish, and short.” Ben Franklin: “There are two powers which have a powerful influence on the affairs of men: the love of power and the love of money.” The framers viewed people as self-interested; saw the government as needed to provide a check against those interests

14. Points of agreement (cont.) • Unequal distribution of wealth is the primary source of political conflict. • The majority (who had little property) would try to seize the gov’t to take property from the wealthy while the wealthy would try to seize the gov’t to protect their property. • These factions would be a chronic source of tension and a potential source of tyranny without a gov’t to hold them in check. (We’ll see this theme prominent in Federalist No. 10.)

15. Points of agreement (cont.) • Principal object of gov’t: To preserve the right to hold property. • “Property” is a very broad concept, including life and liberty as well as material belongings. • Nature of gov’t: Pit power against power to avoid tyranny. • Federalist #51: “Ambition must be made to counteract ambition.” • This provided the basis for separation of powers and system of checks and balances.

16. The challenges: • Have democracy but not TOO much democracy • You need the consent of the governed but… • …that can lead to more Shays’s Rebellions. • Instill power in gov’t but not TOO much power • After all, they just fought a war to get out from under one tyrant.

17. So how do you solve this one, smart guy? Class exercise: • You’re a founding father/mother. People on the three rows on the left are from a large state while people in the other row are from a small state. • What solution best protects your state when answering the following questions? • What should Congress look like – i.e., how many chambers, how many representatives per state, and who elects the members of Congress? • How would you elect the president?

18. The Virginia Plan • Bicameral legislature. • Representatives in the “lower” chamber chosen by the people. • The # of representatives in lower chamber based on population of state. • “Upper” chamber to be selected by members of lower chamber. • President and judges to be chosen by legislature.

19. The New Jersey Plan • Let’s just tweak the Articles (and thereby preserve state power). • One chamber of Congress, with each state represented equally. • Congress elects a federal executive (not one individual; several people, all of whom could be recalled).

20. The Connecticut (or Great) Compromise • On a 5-4 vote (with 2 no-shows, 1 early departure, and 1 can’t decide), the states went with the CT Compromise. • Two houses. • Senate with two members from each state elected by state legislatures • House representatives directly elected based on population. • Revenue bills (i.e., taxes) must originate in the House. • Note that this still favors small states in many ways, since lots of things – ratifying treaties, confirming presidential nominations, etc. – done only in Senate.

21. Connecticut Compromise (cont.)

22. More solutions (and more compromises) • Electing a president: • Some wanted Congress to select the president • Others wanted the people to elect him • Compromise: The Electoral College • Each state has same # of electors as they have members of Congress, + 3 for DC • The people vote for the electors, who vote for the president • Voting in general: • Limit to property owners? Open to all? • Compromise: if you’re OK by the states, you’re OK by us

23. A solution for the economy • Remember who the delegates were – basically the 1%-ers of their day. • States were compounding the problems by imposing tariffs on other states’ goods and by printing worthless money and forcing its acceptance. • Delegates: the economy needs adult supervision. • Let’s give US Congress power to regulate interstate commerce, to tax, to borrow, and to spend. • And let’s prevent states from imposing tariffs or having state-issued currency. • States also have to recognize contracts made in other states.

24. Economic powers

25. A solution for individual rights? • Not really, b/c none was thought to be needed by many at the Convention. A limited gov’t avoided threats to personal freedoms. • Did address a couple of areas: • Guaranteed writ of habeas corpus – the right to go before a judge and be told why you were arrested. • (more on next slide)

26. A few more individual rights • No bills of attainder (a law declaring someone guilty of a crime without a trial) • No ex post facto laws (a law making an act criminal even though it was legal when it occurred) • No religious litmus test for public office • A narrow definition of treason (it “shall consist only in levying War against [the US], or in adhering to their Enemies, giving them Aid and Comfort.”). • Right to trial by jury in criminal cases.

27. But no Bill of Rights yet. Why? • Delegates thought that states were doing okay job protecting individual liberties. • Saw the Constitution as making it hard for a gov’t to infringe on personal rights. It created a limited government, so what’s the problem? • Feared that including a statement of rights might jeopardize the delicate compromise that had been reached. • What about rights not mentioned? Do they not exist?

28. Who is a “person” under the Constitution? • Slaves? • If they were persons, then surely slavery would have to be outlawed, which would have blown up the process. • How about outlawing importing new slaves? Nah; still too incendiary. • Can we at least outlaw importing new slaves after a certain date? Okay, but not for another 20 years. • When is a slave a “person”? Hmm; tough question. • We like more say in Congress but we don’t like more taxes. • Let’s count each slave as 3/5 of a person for purposes representation in Congress and apportionment of taxes. • Why this approach to slavery? B/c the colonies had agreed that the Constitution required 9 of 13 to approve; banning slavery would’ve cost the southern states’ votes.

29. Were women citizens? Yes, but second-class. • No right to vote. • “Coverture” the norm. But note: “If particular care and attention is not paid to the Ladies,” Abigail [Adams] wrote, “we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice or representation.” You go, girl!

30. Antifederalist opposition • The Antifederalist view: • Liberty can only be secured in small republics. Larger ones lead to -- • Congress taxing heavily • The president controlling a large standing army • All-powerful USSC • Their solution: keep power at the state level • Influence of Antifederalists shows up in system of federalism. Remember: National gov’t is a gov’t of limited, enumerated powers; states get everything else.

32. Madison’s intellectual influence • Federalist # 10 and # 51 may be his most famous contributions. • #10 class rewrite. • Focus on Madison’s insights into factions – why they arise and what we can do about them. • #51: Create a system of checks and balances. “Ambition must be made to counteract ambition.”

33. Avoiding the Tyranny of the Majority:The Madisonian System • The challenge: how to be responsive to the majority while protecting private property. Pure democracy seen as a threat to the property owners. • The solution: The Madisonian System “[Y]ou must first enable the government to control the governed; and then in the next place oblige it to control itself.” Madison, Federalist No. 51

34. Pillars of the Madisonian System • Limit majority control • House the only branch directly elected (Senate became so in 1913) • State legislatures to elect senators, the electoral college to elect the president, president to nominate judges • Separate powers • Constitution creates system of shared powers, relative independence • Create checks and balances • Congress passes law, president approves (or not), courts review (see Marbury v. Madison; n.b.: HUGE CASE!!! Lots more to come about Marbury) • If a faction controlled one branch, the others could provide a check • Create system of federalism • Divide power between fed’l gov’t and the states

35. Madison’s a smart guy • His insight: You cannot improve people or get rid of factions, so build a gov’t that is based on this reality. • The result of all this: • On a good day, slow gov’t; laws made after much deliberation and compromise. • On other days, gridlock.

36. So let’s now start our journey through the Constitution Any serious study of the Constitution begins with…Barney Fife, Constitutional scholar.

37. Federalism and Separation of Powers give us… • Enumerated powers (national gov’t one of limited powers) • Concurrent powers (some powers are shared by national and state gov’ts, such as taxing, court system, etc.) • Reserved powers (any power not given to the national gov’t is reserved to the states; n.b., the reserved powers on next slide are not explicit)

38. The categories of power graphically

39. Unpacking the Constitution • The Preamble (see handout) • Form a more perfect union • Establish justice • Insure domestic tranquility • Provide for the common defense • Promote the general welfare • Secure the blessings of liberty

40. Unpacking the Constitution (cont.) • Article I: Congress • Section 1: All legislative powers vested in Congress, which is to have a House and Senate • Section 2: House: • Elected every 2 years by the people • Must be 25 years old, citizen of US for 7 years, and when elected an inhabitant of State he/she represents • Section 3: Senate: • Elected every 6 years by state legislatures (now people) • Must be 30, citizen for 10 years, and inhabitant of state • Senate sole power to try impeachments and make treaties

41. Unpacking the Constitution (cont.) • Article 1 (cont.) • Section 4: • States decide time, place, and manner for electing Congressmen unless Congress changes the rules • Congress to meet each year, on 1/3 • Section 5: • Each chamber judges qualifications of members, determines housekeeping matters, keeps a journal • Section 6: • Congressmen get paid unless they commit treason. • Immune from liability during speech and debate • Section 7: • All revenue bills start in House • President can veto, Congress can override by 2/3 vote

42. Unpacking the Constitution (cont.) • Article 1 (cont.) • Section 8: The biggie • Powers enumerated • Includes power to take all actions “necessary and proper” for exercising the other enumerated powers • Section 9: • The slavery punt • Also includes various individual protections (habeas corpus, bills of attainder, etc.) • States can’t impose duties on goods from other states • No titles of nobility • Section 10: • States cannot enter into treaties, coin money, etc.

43. Unpacking the Constitution (cont.) • Article II: The President • Section 1: • Electoral college established • Must be a “naturalborn citizen,” at least 35 years old, and a resident within the US for at least 14 years • Section 2: • President is commander in chief • Makes treaties (with advice & consent of Senate) • Appoints officers (with advice & consent of Senate) • Section 3: • Give a state of the Union report • Take care to execute all laws faithfully • Section 4: • Can be impeached for “high crime or misdemeanor”

44. Unpacking the Constitution (cont.) • Article III: The Courts • One Supreme Court • Such “inferior” courts as Congress determines • Contains the only definition of a crime in the Constitution – treason

45. United States ConstitutionArticles I, II, III

46. Unpacking the Constitution (cont.) • Article IV: • Section 1: Full faith and credit clause • Section 2: Privileges and immunities clause • Section 3: Admission of new states • Section 4: US to guarantee a republican form of gov’t and protect against invasion or domestic violence

47. Unpacking the Constitution (cont.) • Article V: Amending the Constitution • Formal (note that there are lots of informal ways): Propose and then ratify • Two ways to propose: 1. By 2/3 of both chambers of Congress or 2. By a national convention called by Congress when ¾ of states ask Congress to do so • Two ways to ratify: a. By ¾ of state legislatures b. By conventions held by ¾ of states • Most common: 1.a (only exception was repealing prohibition; used 1.b for political reasons)

48. Amendment ProcessArticle V

49. Unpacking the Constitution (cont.) • Article VI: • Gov’t will honor all debts incurred by the country before the Constitution (and hopefully after) • Federal law preempts conflicting state law • No religious litmus test for any federal office • Article VII: • Irrelevant; deals with ratifying the Constitution (which required 9 of 13 states to approve)

50. A little scavenging…. • Class exercise: scavenger hunt.