Lecture Outline: Chapter 2
Constitutional Foundations
I.
The U.S. Constitution has been a controversial document from the time it was written.
A. There was, of course, very strong opposition to the ratification of the Constitution
when it emerged out of the Philadelphia Convention in 1787.
B. Even among its supporters, the Constitution has generated debate. One such
controversy focused on constitutional change.
1. Thomas Jefferson favored frequent and radical changes in the constitutional
system—every 20 years, if necessary.
2. His friend and political ally, James Madison (often called the “Father of the
Constitution”), was more concerned with instability than change. He favored
cultivating popular attachment to the Constitution to promote long-term stability.
3. Americans have accepted both sides of the Jefferson-Madison debate at different
times in U.S. history. For most of the nineteenth century, Madison’s concerns
were stressed, and this was reflected in the popular treatment of the Constitution
as “timeless and perfect.” For the past century, in contrast, the emphasis has been
on viewing the Constitution as a “living” document. Each perspective has been
marked by the dominance of a particular myth reflecting the respective positions.
II.
The Constitution owes much of its durability to the fact that it was not created in a
vacuum.
A. The failure of the Articles of Confederation instigated the writing of the Constitution
in 1787.
B. The convention delegates were a group of diverse, experienced, and politically savvy
personalities.
C. The Constitution also reflects a variety of important traditions:
1. The framers relied heavily on the British constitutional tradition, including its
charter (such as the Magna Carta), its common law (judge-made law), and its
major statutes (most notably the British Bill of Rights).
2. Many traditions from colonial times influenced the writing of the Constitution,
including the principle of self-government.
3. In addition to Judeo-Christian religious traditions, the framers were influenced
by European philosophers of the Enlightenment, including Thomas Hobbes, John
Locke, Charles de Montesquieu, and Jean-Jacques Rousseau.
D. The political history of the colonies was also a major factor:
1. Until the 1760s, the American colonies operated without much oversight by the
British, which gave them experience with self-governance.
a. In the 1760s, the British began to interfere in the political life of the colonists,
thus planting the seeds for revolution.
b. The Stamp Act of 1765, the first tax directly levied against the colonists, led to
the cry of “taxation without representation.”
c. In September 1774, the First Continental Congress met to protest British
actions. By the Second Continental Congress, in May 1775, colonists and
British troops had exchanged gunfire at Concord and Lexington.
d. On July 2, 1776, the Declaration of Independence was adopted. It articulated
two basic principles:
(1) The purpose of government is to secure the inalienable rights of its
citizens.
(2) The basis for government authority is the consent of the governed.
III.
Within the political context of the times, the framers of the Constitution approached their
task with five important objectives:
A. They needed to establish a national government whose legitimacy and authority
would be acceptable to the people. The source of government authority, as stated in
the preamble, would rest with the people.
B. Their efforts to structure government authority had to address two challenges. The
first was how to divide authority between the national and state governments. To
accomplish this, they created modern-day “federalism.”
1. In conceptual terms, the federal system is distinctive in the way it divides
government authority between a national government and state governments.
Under the theory of federalism, some powers are exercised by the national
government, others by state governments, and still other powers are shared
between the two levels of government.
2. This contrasts with the unitary system found in many countries, which places all
formal authority in the central government.
a. These systems are not necessarily undemocratic, nor are they necessarily
without local governments.
b. In Great Britain, for example, democracy thrives, as do local government
authorities, which are created by Parliament to carry out many public policies.
3. It also contrasts with a confederal system, which places government authority in
the hands of state governments and permits them to enter into an agreement that
establishes a central government that can carry out nationwide policies and
programs.
a. This system can also be quite democratic and durable, as is evident in the
confederal system in the government of Switzerland, a system that is centuries
old.
b. This was also the system under the Articles of Confederation, and it was the
model upon which the Confederate States of America attempted to operate
during its short existence in the Civil War.
4. Borrowing from both models, the framers developed the general outlines of the
federal system. They left many details undefined, however. As a result, the
structure of authority between nation and states has been constantly changing—
as we discuss in Chapter 3.
C. A second task was to design a structure for the national government that would avoid
the problems experienced under the Articles of Confederation. The solution is
reflected in the first three articles of the Constitution that establish the basic
institutional structures of American government.
1. The Great Compromise became the basis for the structure of government. The
Great Compromise was a reaction to two other plans.
a. The Virginia Plan favored the large states in the representative process by
calling for a two-house (bicameral) Congress based on each state’s
population. Separate executive and judicial branches were also advocated
under this plan.
b. The New Jersey Plan favored the smaller states by advocating changes in the
Articles of Confederation that would maintain equal representation of the
states in a strengthened unicameral legislature while creating executive and
judicial branches.
2. The Great Compromise resolved the problem. A bicameral Congress was
established with one house—the Senate—favoring the smaller states through
equal representation and the other house—the House of Representatives—
favoring the larger states through representation based on population.
a. The compromise created an executive branch headed by a president and a vice
president.
b. The framers also created a Supreme Court and provisions for the establishment
of “inferior Courts” as called for by Congress.
3. The Great Compromise was the first of several major political compromises
reached at the 1787 convention.
a. Other bargains helped settle (at least temporarily) issues such as slavery,
taxation, and states’ rights (see Table 2.1). In the process, the institutions of
federalism (see Chapter 3) were established.
b. A major legacy of these compromises is that they created ambiguities and
institutional flaws that later generations would have to contend with. A
primary example is the history of the electoral college.
D. The founders wanted to define the formal powers of the branches of government.
They gave Congress the right to make laws and the president the power to oversee
their execution. The powers of the courts were more ambiguous and were clarified
later in several important court decisions. These decisions established the principle of
judicial review, the power to hear and judge disputes over the law.
1. Article I, Section 8, of the Constitution lists the delegated powers explicitly
given to Congress, including the power to tax and regulate commerce between
the states.
2. The same section of Article I provides Congress with the right to make all laws
“necessary and proper” to carry out its constitutional responsibilities. This
necessary and proper clause established implied powers for Congress that go
beyond those listed in the Constitution.
3. The Tenth Amendment states that all powers not expressly denied to the states or
given to the national government belong to the states. Known as reserved
powers, historically they have included providing for public education and
controlling intrastate trade.
E. The Constitution also placed formal limits on the powers of national and state
governments.
1. The body of the Constitution contains a number of limits, such as prohibitions
against ex post facto law and bills of attainder and severe restrictions on the
government’s ability to suspend the writ of habeas corpus.
2. The most famous limitations were established later, however, in the first 10
amendments, called the Bill of Rights. They guaranteed the fundamental
liberties, including freedom of speech, press, assembly, and religion.
3. There were also provisions placing limits on the actions of states and establishing
the supremacy of national laws in case of conflict between the two levels of
government.
F. The framers’ final goal was to provide procedures that could be used to amend the
Constitution.
1. There are a variety of ways to bring about constitutional change. The framers
engaged in the most radical of those means—they literally replaced one
constitutional system with another.
2. But in the Constitution itself they created elaborate processes for formally
amending the Constitution.
a. There are two ways to propose and then ratify amendments:
(1) Amendments can be proposed by a two-thirds vote of both houses of
Congress or by a national convention called by Congress at the request of
two-thirds of the states.
(2) An amendment may be ratified by either three-fourths of the state
legislatures or by ratifying conventions in three-fourths of the states.
b. In addition to the first 10 amendments (the Bill of Rights), there are 17
additional amendments to the Constitution. The amendments cover voting
rights, rules for electing officials, changes in the constitutional powers of
government, and citizens’ rights. (See the appendix of the text for a review of
the 27 constitutional amendments.)
3. Over time, two other means for changing the Constitution have emerged.
a. When faced with issues or ambiguities in the Constitution, each of the
branches has had to rely on “interpretation,” and in the process they have given
meaning and changed our constitutional system. The Supreme Court has been
the most active interpreter, but all three branches have been involved.
b. Similarly, there are “gaps” in the constitutional framework that needed to be
filled with rules, practices, and institutions. Thus, we have change being
brought about through acts of “construction” by each of the branches.
IV.
The Constitution was built on five principles that have been central to the stability and
endurance of the American constitutional system.
A. The rule of law, although never mentioned directly in the Constitution, is an
important legacy of this document. The rulers, like those ruled, are answerable to the
law. The framers established this principle by limiting the power of government in
many of the Constitution’s articles and amendments.
B. By advocating the principle of republicanism, the framers were calling for a
government in which decisions are made by elected or appointed officials ultimately
answerable to the people: the people had a voice, but that voice was filtered through
their representatives.
C. In the separation of power principle, the framers tried to minimize the possibility of
one faction gaining control over the government by establishing legislative,
executive, and judicial branches of government.
D. The principle of checks and balances makes it possible for the executive and
legislative branches to share some responsibility and gives each branch some control
over the others’ activities. The power of the judicial branch to review the actions of
the other two branches was established later.
E. In the American constitutional system, the principle of national supremacy makes
the Constitution the “supreme law of the land,” providing an authority for settling
fundamental disagreements between different levels of government.
V.
In the discussion of the myth of the living Constitution, the book stated that the
constitutional system has succeeded in part because Americans have adopted a view that
facilitated constitutional adaptation and change while remaining faithful to some core
principles.
A. Although it is a relatively well-crafted document, it is constructed out of
compromises. Interpretations and constructions influenced by laws, court decisions,
political attitudes, and traditions have reshaped the Constitution over the past 200
years, making it a “living,” not a stagnant, document.
B. Not everyone has been pleased by the results. Some have argued that the myth of a
living Constitution has compromised some of the basic principles set forth by the
framers; others have contended that the basic framework has not been flexible
enough in keeping up with the demands for greater democracy in today’s world.