The Constitutional Framework (and related concerns)

1. The Constitutional Framework (and related concerns) References: Cummings and Wise, Democracy Under Pressure Fiorina, Peterson, and Voss, America’s New Democracy

3. Political Philosophical Foundations • Key ideas: • State of nature • Social contract • Civil society • Natural Rights • Limited government • Separation of powers • Thomas Hobbes • John Locke • Montesquieu • Jean-Jacques Rousseau • Thomas Jefferson • Thomas Paine • James Madison

4. Hobbes. Locke, and Rousseau • Thomas Hobbes - Leviathan • State of nature (absence of government) is “solitary, poor, nasty, brutish, and short” – a war of each person against all other persons; no physical security • We escape the state of nature via the social contract, i.e., an agreement to submit to the rule of a sovereign with authority to rule • Requires surrender of some liberties, yet results in freedom from fear, freedom from predation, freedom from theft • Consistent with the idea that citizens consent to be governed

5. John Locke - Second Treatise on Government • Even in state of nature, man possesses certain natural rights (natural law idea) – life, liberty, health, material possessions (ideas also included in the Magna Carta of 1215) • People are not, by nature, cruel; to the extent possible, they ought and are inclined to protect one another • In a state of nature, each person may punish others who transgress the law of nature (each person has executive authority ) • Via social contract, we enter civil society and surrender our executive authority to government; government now authority to make and enforce laws, we get protection of our natural rights in return • In the context of civil society, freedom from both fear of theft and violation of our property rights encourages us to be productive, wealth-accumulating • Powers of government are limited (government may not do anything that it wishes) • Embraced separation of powers idea (this idea later extended by Montesquieu) is a key way of protecting liberties of citizens

6. Rousseau – The Social Contract • State of nature is less severe than that described by Hobbes (and Locke) – sees humans as social and naturally good • Modern world has robbed us of our natural tendencies toward caring for others. To recapture this, we must reject materialism and return to a more natural way of living (the modern world has caused us to value the wrong things) • Solution – create a civil society where people identify with one another (he is an idealist), establish a deep sense of mutuality and community (this is real freedom)

7. Montesquieu – The Spirit of the Laws • Fully develops idea that powers of government should be divided into legislative, executive, and judicial powers (extended Locke’s notion of separation of powers) • Important influence on Madison’s thinking

8. Thomas Jefferson • Author of Declaration of Independence (1776) • Appeals to the moral foundations of the plan to sever ties with England • Preamble – natural law references (“…all men are…endowed by their creator with certain unalienable rights….”) • It is the duty of the colonists to free themselves from despotic rule • List of grievances against King George III (27 distinct complaints) – accuses British king of tyranny • Demands that the governed be allowed to choose those who govern them

9. Declaration of Independence continued…. • British people are criticized for providing no comfort, no relief to their persecuted brethren [“They too have been deaf to the voice of justice and consanguinity.” • Concluding paragraph • Appeal to God for support and blessing of their aims • Explicit severance with British Crown • Pledge to one another [“…our lives, our fortunes, our sacred honor.”] • Remember – Jefferson’s reference to language used by Locke [“life, liberty, and the pursuit of happiness.”] • Clear concern for property rights

10. In Paris at time Constitution was drafted • Feared powers of federal government and lack of civil liberties protections in Constitution • Jefferson is sympathetic with rural, farm culture (as opposed to urban, New England culture) • Yet, he believed that adoption of the Constitution was an essentially good thing

11. Thomas Paine • Author of Common Sense • http://www.historyplace.com/unitedstates/revolution/common.htm • Government is consequence of man’s wickedness, evil intentions – things we acquire as life gets easier, more comfortable in the modern world • Direct democracy fails when population grows too large, pop. is geographically disperse, and issues too complex • Impressed by Whig idea of citizen participation in government as a check on the authority of those in power • Monarchy is an absurd way to govern • Britain is no parent or protector of the colonies • Our commerce with Europe will make her our ally, continued alliance with British will only frustrate our trade relationships with other nations • Reason requires us to separate from British • Suggests that failure to join the side of independence is tantamount to cowardice

12. “Society in every state is a blessing, but Government, even in its best state, is a necessary evil; in its worst state, an intolerable one.” Thomas Paine

13. James Madison • Lineage in Virginia (like Jefferson) and its history of constitutional recognition of individual liberties • Read widely and prepared diligently for the constitutional convention of 1787 • Key influence on the development of the constitutional framework • Champion of separation of powers idea • Vigorously advocated the idea of strong national government (Federalist 10 and 51) • Like others of his time, feared popular government and direct democracy

14. Pre-constitutional history • Colonial Experiences • Articles of Confederation • Drafting of the Constitution of 1787

15. Colonial Experiences • Radical (for the time) principles emerging in pre-revolutionary America – reflections of European political thought and experiences under British rule • Government by consent of the governed • Separation of powers • Citizen participation in government

16. Life Under British Rule • 1620 – voyage to England’s Virginia Colony (ship arrives in Massachusetts) • Passengers create the Mayflower Compact (idea of government by consent of the governed) • Stamp taxes (1765) triggered protests and demands for representation in Parliament (tax later repealed) • Import taxes imposed on colonies • Triggers Boston Tea Party (1773) • Uprising causes British to withdraw Massachusetts’s charter, close it’s elected assembly • First Continental Congress (1774) – calls for statement of colonists’ rights and boycott of British goods

17. Second Continental Congress • Acts to withdraw colonies from British rule (1776) • Richard Henry Lee’s resolution – formal proposal to declare independence • Declaration of Independence (Jefferson) • Appoints Geo. Washington as commander of the Continental Army • Revolutionary War (1776-1783) • Ends in 1783 with signing of the Treaty of Paris • States expanded range of electoral participation during the conflict; reaffirmation of ideas that would later comprise the Constitution • Note: after War, most states adopt constitutions that include bills of rights

18. Articles of Confederation (1781-1789) • Weaknesses of plan (weak central gov’t) • No executive branch, no national courts • No means of compelling revenue from states • Non common currency among the states • States could exact tariffs on other nations and create barriers with other states • Unicameral Congress, equal rep. among states • Congress with no power to regulate commerce • Unanimity required for amendment (not once)

19. Drafting the Constitution of 1787 • Background: • Annapolis Convention 1786: decision to meet in Philadelphia in May 1787 (Const. Convention) • 1786 Shays Rebellion (Mass.) • February 1787 – Congress approves plan to meet in Philadelphia (to revise Art. of Confed.)

20. The Constitutional Convention • 55 men (wealthy men, Washington presides, Madison keeps record of debate) • Debate and dissent in some instances, bargaining and compromise common • Madison’s separation of powers framework becomes the basic blueprint • Document signed by 39 delegates

21. Full scope of federal powers not addressed – this matter left to future generations • Silent on matter of judicial review • Silent as to how federal officeholders are to be chosen • President’s cabinet not explicitly created

22. Key conflicts at Convention of 1787 • Problem of representation in legislature: • Virginia Plan (large state plan) vs. New Jersey Plan (small state plan) = Connecticut Plan (Great Compromise), bicameral legislature • Problem of slave representation • “three-fifths” compromise –Art. I of Constitution • Otherwise, convention did not attempt to solve the problem of slavery – avoiding conflict with the Southern delegation

23. Motives of the Framers • Charles Beard, An Economic Interpretation of the Constitution • Many provisions reflect the interests of creditors, landowners, and those with wealth in general • In many ways, Framers feared direct democracy • Preferred a republic (representative democracy; see Federalist 10)

24. Structure and Key Features of the Constitution Separation of Powers • Art. I – legislative branch • Section 8 (express powers of federal gov’t) • Clause 18 (necessary and proper clause) – foundation for broad powers of federal gov’t • Section 9 (basic protections for citizens) • Habeas corpus provision • Also in Art. I – prohibition on bills of attainder, ex post facto laws, statement that only Congress may appropriate money from Treasury

25. Article II The Executive Branch • Office of President • Commander in chief • Make treaties, (w/ senate approval), appt ambassadors, judges (w/ senate approval) and call Congress into special session • Electoral college (no direct election of pres.) • Majority vote required for a win (if no majority occurs, House of Reps chooses president) • Reflects Framers’ fear of popular government

26. Article III – The Judiciary • Judicial review = principal policy making tool of the federal judiciary • practice is rooted in (but not explicitly addressed by): • (1) Article VI – Supremacy Clause • (2) Art. III – S.C. has authority to resolve cases arising under the Constitution • Practice of judicial review in place in American states prior to 1787 (Framers were familiar with the idea of jud. rev.) • Framers considered adopting a Council on Revision • Marbury v. Madison (1803) did not create the practice of judicial review; decision announced that Sup. Court will exercise power of judicial review

27. Checks and Balances (examples) • President – veto power (Congress may override by 2/3 majority) • Senate must confirm pres. appointments (such as those to the fed. courts) • Congress may react to court decisions by changing the content of laws, contracting the jurisdiction of the lower federal courts

28. Federalism • Powers of governments are divided among the national government and the state governments • Some powers are held exclusively by Fed. Gov’t (examples?) • Some powers are held exclusively by states (“police power”) • Some powers are concurrent (held by both the Federal Government and state governments) – taxation, eminent domain, borrow money • 10th Amendment – reserved powers of the states

29. Article VI – Supremacy Clause • The Constitution, laws, and regulations enacted by the national government are superior to those enacted by the states • Keep in mind that the national government is one of enumerated powers (it has only those powers granted to it (either explicitly or by implication) in the Constitution.

30. Article VII of Constitution • Provides that ratification occurs on the action of 9 states (violates rule set forth in Art. of Confed.) • States held individual conventions to consider the new constitution • 1787-1788 (9 states ratify as of 6/21/1788) • Virginia and NY ratify in summer of 1788 • N. Carolina and R.I. ratify in 1789 and 1790, respectively

31. Key Amendments to the Constitution • Bill of Rights (1791) – originally applied only to the federal government • Amendments 1-8 • Amend 9 – unenumerated powers / Amend 10 – reserved power of states • 13th Amendment – forbids slavery • 14th Amendment – due process clause, vehicle for incorporation of many provisions of the Bill of Rights • Also and equal protection clause, privileges and immunities clause • 19th Amendment – women’s suffrage • 27th Amendment (1992) – directed at salaries of members of Congress

32. Constitutional Interpretation • Key Question: How are we to use the language of the Constitution as a limitation on government power and as a guide for governing?

33. Constitutional Interpretation • Two views : • (1) Interpretivism – Constitutional language has an objective, fixed meaning. Our job is to “discover” that meaning. • Intentions of the framers • Possible source: Madison’s notes on the debates held at the Constitutional Convention in 1787. • Problem: In an environment of conflict and compromise, are we certain that a clear intention adheres to the constitutional language? • Literal meaning of constitutional language • Source: the document itself • Problem: How do we arrive at the meaning of language?

34. (2) Non-interpretivism • The limitations imposed on government by the Constitution are not perfectly captured in the document’s language. • The limits of government power must be periodically reconsidered in view of changing circumstances and the evolution of the nation’s political beliefs • Key point – intentions of the framers are largely unknown; constitutional language is indeterminate or ambiguous in meaning