The U.S. Constitution
We the People …….
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The U.S. Constitution
The world’s oldest living constitution.
Is this a good or bad thing?
No working Constitution has been around as long as ours. While our
original Constitution has been altered by the number of amendments, it
mostly remains intact in its original form. The durability of the document
has blessed us with over 200 years of stability; however, as the oldest
democratic system of government in the world, we are also somewhat
of a prototype. On this first stab at building a democratic republic, did
our forefathers really get everything just perfect? Isn’t there anything to
be learned from the innovations in government over the last 200 years?
Perhaps so.
Our Constitution is as highly revered as it is old. Along with the
Declaration of Independence, it binds us together and gives us an
identity. Thus it is not surprising that Americans are reluctant to mess
with it, even parts that seem outdated. For example, even though Al
Gore received the most votes in the presidential election of 2000,
Constitutional rules involving the electoral college gave the presidency
to George Bush. While many political scientists had predicted that this
kind of event would lead to public demands for constitutional reform,
hardly a whimper was heard from the pubic and the electoral college
remains intact. (More on the electoral college in a few weeks).
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The U.S. Constitution
Critical Questions
1. How and why was it formed?
2. What vision of government does it
embody?
3. How democratic is it, and how well
does it serve us?
As students of political science it is important to understand our
Constitutional structure, not only in terms of its details but also in terms
of the broader vision of government it embodies. It is also valuable to
understand its historical origins so that rather than accept it simply as a
fait accompli, we can assess its strengths and weaknesses in the
modern world.
By the way, when you write, note that many governments have
constitutions (small c). Our Constitution (proper noun, capital c) was
written in 1787.
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The Articles of Confederation
Our First National Government
• Created during the War for Independence,
with the revolutionary spirit in mind.
• Belief that weak government is the best
safeguard to liberty:
– No chief executive, no executive branch
– No power to tax or regulate trade
• A confederacy with one vote per state, 9
states required to pass a law.
The now defunct Articles of Confederation were the first constitution of
the United States, but the government it created was so weak that it
collapsed and was replaced by our current constitution after about 10
years.
Two things guided the creation of the Articles: First, a fear that strong
government was likely to be oppressive. This grew directly out of our
experience with England during the Revolution. Second, was the
primacy of the states over the national government. This stemmed
from the fear of governmental power that was far from home as well as
the stronger identity people of that era felt for their state as compared to
the nation as a whole. It also grew out of the fact that the 13 original
states existed long before the United States and people’s identity was
stronger for their individual state than it was for the nation as a whole.
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Problems with the Articles of
Confederation
• The national government could not control the
inflationary policies of some states.
• The national government could not deal
effectively with critical foreign policy issues.
• The national government could not raise
money needed to execute policy.
• The national government could not ensure
domestic stability.
But calls for reform go unheeded until…..
Your text outlines the severe problems that the government under the
Articles did not seem capable of handling.
Though many leaders called for a stronger government, most people
were apathetic about reform until …..
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Shays’ Rebellion 1786
•The “rebellion”:
– The plight of poor farmers and demands of Daniel Shays.
– Uprising and suppression.
•Effects
– Fear of tyranny of the majority.
– Need to quell the revolutionary spirit.
– Renewed Interest in revising the Articles.
----> 55 men show up in Philadelphia to revise the Articles of
Confederation and end up writing a new Constitution!
Shays’ Rebellion was a small event with huge consequences.
It took place in rural Western Massachusetts where rural farmers felt
that government policies were driving them into debt, making it difficult
for them to pay back their loans, and leading to foreclosures on their
land. (sounds a little like current times, I realize - anyone about to lose
their home? Let’s surround the court houses!)
As a result of the crisis being faced by poor farmers, retired
Revolutionary Army captain Daniel Shays led 2,500 armed farmers to
surround courthouses in 3 counties in order to shut down foreclosure
hearings so that no one would lose their land. The government of
Massachusetts raised a militia of over 4,000 and dispersed the rebels.
The rebellion faded quickly as over 1,000 a were arrested and jailed
(and barred from voting, holding office, being schoolmasters or tavern
operators (jobs that could impact public opinion)
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Shays’ Rebellion 1786
•The “rebellion”:
– The plight of poor farmers and demands of Daniel Shays.
– Uprising and suppression.
•Effects
– Fear of tyranny of the majority.
– Need to quell the revolutionary spirit.
– Renewed Interest in revising the Articles.
----> 55 men show up in Philadelphia to revise the Articles of
Confederation and end up writing a new Constitution!
This stirring of popular discontent and the resulting fear among elites
that the government might not be able to maintain order, led to to a
consensus that a stronger government was needed. Just a few months
before the uprising, a meeting had been called in Annapolis to revise
the Articles, but only 12 men representing 5 states showed up so they
disbanded. After Shay’s rebellion, a similar meeting drew 55 delegates
representing every state except Rhode Island. This group which meet
in Philadelphia in the summer of 1887 for the purpose of revising the
Articles of Confederation, ended up scrapping the the Articles
altogether and writing an entirely new constitution. The meeting of
these 55 men has ever since been referred to as the Constitutional
Convention.
By tearing up the Articles and creating an entirely new government
outside the legal means provided by the the Articles, they enacted what
might be called a bloodless revolution.
Mass. follows anti-inflationary, tight money policy
Shays Demands: paper money, lower taxes, abolish aristocratic
aspects of mass. gov. stay laws (moratoriums on foreclosures)
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The Framers
At least they conserved ink.
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The Framers
We, the People….
• 55 white males
• all land owners
• 23 lawyers
• all 2nd or 3rd generation
• not one farmer
Yet, adopted only after being
ratified by “the people”.
The actual 55 men who wrote the Constitution were hardly a cross
section of the American people.
However, after writing the Constitution a pubic referendum (vote) was
held on whether or not to adopt it, giving it a democratic basis and
adhering to Locke’s and Jefferson’s notion that governments should
have the “consent of the governed”. (Still, we will soon see that the
ratification process was tilted a bit in their favor.)
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The Framers
We, the People
• A new “post revolutionary” generation:
Alexander Hamilton, James Madison,
George Washington, the aging Ben Franklin,
and a host of newcomers.
• Missing:
Thomas Jefferson, Patrick Henry (“I smell a
rat.”), Thomas Paine, Sam Adams.
Apart from Washington and Franklin, many of the most prominent
figures of the Revolution were absent from the Constitutional
Convention, which was largely the work of new and younger
generation. Some of the old revolutionaries such as Patrick Henry
refused to participate fearing the intention of the convention was to take
power away from the common people place it in the hands of the
privileged. His simple snipe “I smell a rat.” summed up his sentiments.
The new generation, perhaps too young to remember the troubles in
England, was less fearful of a strong government which might become
tyrannical. Alexander Hamilton, perhaps the leading figure at the
convention, was only about 10 years old during the Stamp Act crisis
when the rebellion against England began. Having come of age as part
of an independent country, this generation tended to be more
nationalistic, identifying with the United States as much as their
individual states. All of this contributed to the push for a stronger
central government.
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The Virginia Plan
• A legislature:
– based on proportional representation,
– with the power to tax.
– with an upper house (a senate).
• An executive branch.
• A national judiciary.
Why was this so shocking?
On the first day of the convention, the delegates from Virginia stood up
and announced that they had a proposal. Shocking their counterparts,
they offered not a mere revision for the Articles, but a plan for a whole
new government.
Most of these elements were highly controversial.
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The Virginia Plan
• A legislature:
– based on proportional representation,
– with the power to tax.
– with an upper house (a senate).
• An executive branch.
• A national judiciary.
Why was this so shocking?
First was the idea that the bigger the state in terms of population, the
more representatives it should have in the government. Under the
Articles each state had been considered equal regardless of size
(popuation).
Secondly, was the suggestion that Congress have two houses. One
that would be for the people at large and one that would be more
aristocratic in nature. This upper house would be called a “Senate”, a
term borrowed from the Senate of Ancient Rome which was open only
to people from select upper class (patrician) families. The other
chamber would be called the House of Representatives and would be
more accountable to everyday people. This idea of a two house
legislature with one house more distant from the common people than
the other was also similar to what England had with House of Lords and
the House of Commons. While this division fit well with the principles of
republicanism, those with more purely democratic leanings were great
opposed.
Third, was the idea to create an office of the president which though
having the potential of providing needed leadership, was thought by
many to smack of monarchy. Many were deeply skeptical of what this
president could become.
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The New Jersey Plan
• A one house legislative branch based on
equal representation.
• New powers to congress: the power to tax,
and regulate interstate commerce.
• An executive committee.
As seen in comparison with the Virginia
Plan…..
After Virginia’s shocker, New Jersey submitted a substantially different
alternative plan, which attested to the fact that the convention had a
long ways to go before reaching consensus on much of anything.
However, within days, what had originally been called as a meeting to
make simple revisions to the Articles of Confederation had become a
meeting to create a whole new system of government.
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The Long Hot Summer of 1787
(Key Areas of Contention)
1. Representation
2. Slavery
3. Powers and Election of the President.
4. The overall power of the federal government.
The delegates spent most the summer haggling over the details in
debates that were hot and contentious. When you think of being
crammed into that small Philadelphia room all summer (with the
windows shut to keep the press from listening in on them) without air
conditioning in Phily’s hot humid weather, it is amazing that the 55
men came up with the remarkable document they did.
While many issues and details divided the delegates, these four were
perhaps the most central.
1. Should states be represented equally or proportionally by population
in the government.
2. If a proportional plan was adopted, would southern states (the only
ones that had slavery) be allowed to count their slaves as part of
their population in order to boost their state’s numbers in Congress.
(The question of banning slavery was never considered as Southern
states would have simply walked out the room to formed their own
pro slavery nation.
3. What powers should the president have and specifically, should he
be able to veto legislation.
4. And finally, just how broad should the powers of the federal
government be over the people and over the states.
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The Great Compromise
1. Representation
2. Slavery (aka the 3/5 compromise)
The most notable feature of the work of convention was that of
compromise, in both the good and bad permeations of this word.
Compromise is often the only way to move forward when faced with
opposition, but it also may mean giving up on cherished ideals.
The so-called Great Compromise ended the logjam that had help up the
convention for weeks and weeks by addressing the question of
representation including the counting off slaves:
It was decided to have a two house legislature with equal
representation in a Senate and proportional representation in a House
of Representatives. As the Constitution would state it, 3/5 of a state’s
slaves would count towards its representation, though a more crass and
damming way of looking at it is to say the slaves were to count as 3/5 of
a person. See Article 1 Sec. 2 and note that despite this implicit
constitutional recognition of slavery, the document never actually uses
the world (do you think maybe they were a little embarrassed?)
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The Presidential Compromises
1. Term Length
2. The veto.
3. The electoral college.
Whether to even have a single president also involved hot debate. New
Jersey wanted a council of 3 with no power to veto, while the outspoken
New York delegate Alexander Hamilton want the president to be
elected for life and have the final say on all laws. Most suggested
terms ranging from one to 12 years.
Eventually they settled on 4 years. After F.D.R. became a the first
president to run for a third term (which he won along with a 4th), a
constitutional amendment was passed to limited future presidents to
two terms. While there is nothing really special about a 4 year term, that
is what they settled on and it seems quite natural to us now. Some
suggest that one 6 year term would make more sense - perhaps
presidents would be more bold not having to worry about re-election,
yet still have enough time to get something done.
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The Presidential Compromises
1. Term Length
2. The veto.
3. The electoral college.
The president received only a partial veto, meaning if he vetoed (forbid)
a law, Congress could override the veto by a 2/3 vote.
The final big issue concerning the president was over who would elect
him. Some felt a man with this much power should be elected directly
by the people, others felt this was too big of a responsibility to be put in
the hands of average citizens. They suggested either the Senate or
the State Governments chose the president. A compromise was found
in the electoral college. Each state would be allowed to chose how to
select its members to a electoral college whose sole purpose would be
to chose the president. We still use this today, and will examine how it
works in detail later in the course.
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Key Features
1. Popular Sovereignty
2. Limited Government
3. Federalism
4. National Supremacy
5. Separation of Powers
6. Checks and Balances
7. Bicamerlism
8. Implied Powers
9. Amendment Process
10. Judicial Review/Political Parties??
Your text covers most of these - Be sure to read what it says about
them carefully. Here are a few notes on each:
1. Popular Sovereignty: This means, the people, not the government,
nor the president are the ultimate source of authority. Bush may
have described himself as “the decider” but he is still bound by the
laws of the Constitution, which is a document belonging to the
people.
2. Limited Government: For the most part the Constitution GIVES the
government powers; however parts of the Constitution LIMIT the
government’s power. These limits are mostly found the the first 10
amendments, which are collective known as the Bill of Rights. For
example, the government can not establish are church, take away
your right to speak, and so forth. We will study these in the last
weeks of the course.
3. Federalism: As mentioned in the previous lecture, federalism is a
system of shared power and sovereignty. In the U.S. we have 50
state governments that share sovereignty with one federal (national)
government. An important concept connected to this is the notion of
“states rights”. These are privileges that states have that can not be
taken away by the federal government. We will study this in detail
next week.
4. National Supremacy: A state law can not undermine a federal
(national) law. However, this does not hold if the federal
government has overstepped its bounds and violated a state’s right.
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Key Features
1. Popular Sovereignty
2. Limited Government
3. Federalism
4. National Supremacy
5. Separation of Powers
6. Checks and Balances
7. Bicamerlism
8. Implied Powers
9. Amendment Process
10. Judicial Review/Political Parties??
5. Separation of Powers: This is one of the most central principles of
American government - be sure you understand it well. In any
system of government there are 3 basic functions: Legislative (the
making of law), executive (the carrying out of the law), and judicial
(interpretation of the law). In absolute monarchies, the king did all
three: he made the law, controlled and directed those who carried it
out, and decided on its precise meaning and application. In the U.S.
we have divided these functions into three separate branches of
government manned by different people. For example, Congress
(our national legislature) may write a law requiring coal companies
to put scrubbers in their smokestacks to reduce pollution. The
president (the head of our executive branch) is then responsible to
see that this gets done. He may not go out there to inspect
smokestacks himself, but he appoints the head of the Environmental
Protection Agency and is responsible to seeing that it does its job. If
a company is fined because its scrubbers are defective but claims
they are doing a good enough job, a federal court (our federal
judiciary) would decide if the intent of the law is being met.
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Key Features
1. Popular Sovereignty
2. Limited Government
3. Federalism
4. National Supremacy
5. Separation of Powers
6. Checks and Balances
7. Bicamerlism
8. Implied Powers
9. Amendment Process
10. Judicial Review/Political Parties??
6. Checks and Balances: Students always seem to mix this up with
separation of powers. Though they are connected, they are
different. After separating our government into 3 different branches,
the framers gave each branch some control over the other two and
this is what is meant by checks and balances. For example, while
Congress is the law making body, the president can veto (forbid)
laws he (we still have to wait for our first female president) thinks are
unwise. A complete list of these is in your text on p.57. Remember,
you can have separation of powers without our system of check and
balances, but you could not have checks and balances if you do not
first separate powers.
7.Bicameralism: This refers to the division of our federal legislature
(Congress) into two chambers: the House of Representatives and
the Senate. This is fairly unique among world governments. We will
study its working later in the course - for now just note the Senate
was originally non-elected and served as a check on the House, just
as the House would check the more elitist Senate. Despite some
changes,the Senate remains the upper and more moderate
chamber.
8 Implied Powers: The next lecture will go over this in detail.
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Key Features
1. Popular Sovereignty
2. Limited Government
3. Federalism
4. National Supremacy
5. Separation of Powers
6. Checks and Balances
7. Bicamerlism
8. Implied Powers
9. Amendment Process
10. Judicial Review/Political Parties??
9.Amendment Process: ANYTHING in Constitution can be changed ---but it is very difficult. Though the Constitution has been amended
27 times, the first 10 were done as a package in its first year. The
most common method of amending the Constitution is by a 2/3 vote
of both the House and the Senate followed by approval (ratification)
by 3/4 of the state governments. The last proposal for an
amendment to be passed by Congress was the ERA (Equal Rights
Amendment) which would have barred discrimination on the basis of
gender. However, it fell short of ratification by a couple of states.
While the biggest move for amending the Constitution now is to ban
gay marriage, this has virtually no chance of making it through the
process and is talked up by representative from religiously
conservative districts mostly in order to stir up votes.
10. Judicial Review/Political Parties: While these are both major
elements of our political system, THEY ARE NOT PART OF OUR
CONSTITUTION. We will talk about their role and origins later in
the course. (Judicial review is the power of the Supreme Court to
declare laws passed by Congress unconstitutional. While this is a
major check on the power of Congress - the Constitution says
nothing about it. How did the court gain this immense power? You
will just have to wait to find out.
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Federalism/Separation of Powers
Federal
Legislative Congress
State
Local
State
Legislatures
Town
Councils
Executive
The
President
Governors
Mayors
Judicial
U.S. Supreme
Court
State Supreme
Courts
Municipal
Courts
Note how in our federalist system, the separation of powers is
replicated at three levels of government.
Example at the local level: A town council passes a reduced speed limit
on city streets, the mayor as the chief executive instructs the Chief of
Police, whom he usually appoints, to tell the cops to give enforcement
of this top priority (or perhaps to give it low priority). Then if I get a
ticket for rushing my pregnant wife to the hospital, the courts decide if
that constitutes a violation of the law.)
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Battle for Ratification
• Process
– 9/13th of the states must agree.
– Elections to be held for ratifying conventions
• The Federalist Papers
Jay, Hamilton, Madison
• The Federalist Victory 1789
– A Silent Revolution?
After the delegates at the convention finished their work, the new
Constitution was submitted to the people for ratification by a process
the framers established themselves. The Articles of Confederation had
stipulated that any changes in the Articles would require the approval of
ALL 13 states. The delegates who had just written a new constitution
knew that they could never get this unanimous consent, so they
basically just tore up the articles and proclaimed that the new
Constitution would become the law of the land if 9 of the 13 states
voted to support it.
However, because the new Constitution increased the power of the
central government and weakened the independence of the states, it
was unlikely that even 9 of the state governments would approve of the
new document. So instead of having the state governments vote on
the matter, they called for special elections to select delegates to
meetings within each state. These specially selected delegates would
then vote up or down on the Constitution to determine if their state was
for or against it. This way, the supporters of the Constitution could first
try to influence the election of the delegates and then work on lobbying
(influencing) the votes of those delegates at the meetings basically
giving them two chances to get the document passed.
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Battle for Ratification
• Process
– 9/13th of the states must agree.
– Elections to be held for ratifying conventions
• The Federalist Papers
Jay, Hamilton, Madison
• The Federalist Victory 1789
– A Silent Revolution?
The supporters of the new Constitution called themselves Federalists,
while those who opposed it took on the name Anti-federalists, with
Alexander Hamilton leading the Federalists and Thomas Jefferson, who
supported state’s rights, leading the anti-federalists. Later, we will see
how these two groups would serve as the roots of our first political
parties.
Adoption of the new Constitution was a close call. Had New York not
voted for ratification, which it did by only a few votes, the whole project
would have most likely failed. The Federalists in New York staged a
major effort to get the vote to go their way, mostly notably publishing a
series of articles now known as the Federalist Papers which sang the
praises of the Constitution. We will read on of these - Federalist Paper
#10, next week.
So, with no bloodshed, and relatively little fanfare (only a small
percentage of Americans even bothered to vote in the elections for the
ratifying meetings) a revolution of sorts occurred. One system of
government, based on state independence and weak central
government, was replace by a bold new system of government that
move power away from local jurisdictions and eventually to the new
capital in Washington D.C.
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A Revered Document
• A Document based on compromise:
– The great compromise
– 3/5 compromise
– Just about everything else
» It wasn’t God-sent
• The centralization of power.
• Numerous checks on democracy and
anti-democratic aspects.
To understand the Constitution, you must see it as a political document
- that is a document based on political negotiation on the part of people
fighting for particular interests and particular visions. While the
document has served us quite well, and may even be considered a
work of political brilliance, it is and was not the discovery of some
unalienable truth. Thus we might want to look at it with continually fresh
eyes.
As we shall see in the coming weeks, state governments were the big
losers in the adoption of the new Constitution because the Constitution
paved the way for a centralization of power under the federal
government.
Democracy was also diminished by the Constitution and replaced by
more republican sentiments. The Senate was not elected by the
people, a single person (the president) could overturn the will of the
majority of Congress, and the president himself was not to be elected
directly by the people.
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A Model for the World?
• Features most countries have rejected:
– Bicameral legislature
– Independent Presidency
– Electoral College
– Non-equal representation
– Judicial Review
– Federalism
As other countries around the globe adopted democratic constitutions,
they adopted many aspects of the American model; other aspects they
discarded with:
*Most counties see no need for an upper house in the legislature - if all
people are equal, isn’t one house big enough for all?
*In most countries the chief executive (often called a prime minister) is
elected by the legislative body so that they are more likely to work
together rather than compete.
*Why shouldn’t the popular vote elect the president? Most countries
have no equivalent to the electoral college.
*Why should Nevada have the same number of senators as California
when California has about 55 times the population of Nevada? Should
we have equal representation based on individuals or states?
*Should 9 non-elected judges be able to overturn the will of Congress?
Not all countries have judicial review. England, among others, says no.
*Federalism is so complicated we will spend next week looking at its
rationale and pitfalls in detail.
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What would you add to or
change in the Constitution, if
anything?
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