Class Notes, Constitution

Long history of compacts

First instance – upon landing, the passengers decided to sign a COMPACT – detailing how the new colony would be governed, and what responsibilities the settlers would uphold in order to have a working community

Established that CIVIL OBEDIENCE would continue in the New World.

Important outcomes of this compact: Established AUTHORITY, but also established GOVERNMENT BY THE PEOPLE.

As colonies grew in number and size, governance needed to expand. Because the colonies were directly controlled by London, there was only LIMITED GOVERNMENT available to colonists (could make decisions, but could not conflict with London’s decisions). Still, colonists passed a number of important laws and codes (Orders of CT, 1639; Pennsylvania Frame of Government, 1682).

Why then, did the colonists desire independence?

They did not like repeated meddling on behalf of the British crown. Under George III (who was officially insane), they became embroiled in the French and Indian War ( a war of George’s choosing), that he then attempted to make the colonists pay for through taxation. (No taxation without representation).

Sugar Act – 1764

Stamp Act – 1765

Tax on glass, lead, paint, etc – 1767

Finally, expression of frustration in 1774 – Boston Tea Party, which set the ball rolling towards independence

COLONIAL CONGRESSES

Founders wanted to have an organized front against the British, to have the most success and make sure they didn’t fall into anarchy after the Brits were defeated. So they called Continental Congresses

1^st Continental Congress

1774 -12/13 colonies represented

Decided to send king a list of formal grievances

Also decided that individual colonies were responsible for providing their own troops and boycotting trade

The British Parliament considered this an act of rebellion

2^nd Continental Congress

May 1775 – 13/13

Fighting already in progress

Congress was still not ready to formally declare independence, stressing they still wished to be a part of British Empire

However, fighting continued

But as Thomas Paine’s pamphlet, Common Sense, made its way through the colonies (it argued that every region had the right to self-government), colonists were convinced that the British control had to go

Declaring Independence

Independence was gradual – first, colonies would stop trade with Britain, then wanted colonies to be unconnected to Britain.

Finally – July 2, 1776 – Congress passed resolution to declare independence

July 4, 1776 – formal Declaration of Independence is issued

Jefferson wrote it alone

Basis of “natural rights” – rooted in Locke’s philosophy that mankind must have a government which recognizes rights as individuals. It was also Locke’s idea that the right to “life, liberty, and the pursuit of happiness [property]” was crucial for everyone.

Social contract – we discussed in first class, but it forms the basis for American representative government (the idea that officials are elected by citizens, who can elect them out of office if they do not perform as expected).

ARTICLES OF CONFEDERATION – FIRST GO AT A REAL GOVERNMENT

CONFEDERATION – a loose confederation of states

States were the strongest entities – founders did not see any evidence that a centralized government did not become tyrannical, and wanted to avoid that at all costs. So they intentionally made it weak, preferring to cede all powers to individual states.

First problem – created in 1777, but not in effect until 1781, when MD finally decided to come on board.

Government looked like this:

Unicameral legislature on federal level – included “ambassadors” from each state (already treating each state as a separate political entity). Congress would choose a president of the CONGRESS once a year. No president of the United States at this moment.

Congress was allowed to create an “EXECUTIVE COMMITTEE” in the case of national problems. However, the committee could only meet with the permission of 9 states. Congress given the power to conduct foreign affairs, and mint coins.

However – federal government had NO RIGHT TO TAX. Therefore – no means of raising revenue to FINANCE these duties.

Congress could only ask individual states to give it money. Of course, that never happened.

Only one success under the AofC – that was the Northwest Ordinance of 1787. Decreed that all the land north and west of Ohio would be used to form new states – and would not be extensions of NY, PA, or MA.

Other weaknesses:

Could not set up court system

Could not regulate trade

Could pass laws – but states didn’t have to abide by them

Articles could not be amended, so problems were not easily fixed

Shay’s Rebellion – farmers were frustrated by rising taxes, and their mounting debt, and the general ineffectiveness of the new government to create a stable economy

Rebellion grew from one town to an entire state-wide movement, and began to bring in converts.

Nation’s leaders saw this as a direct threat to the life of the nation – and defeated the group in Petersham, MA. Group leaders fled to VT, where they were sheltered by Ethan Allen, sentenced to death for treason, but were pardoned by new MA governor John Hancock.

However, this convinced national leaders to go back to the drawing board and start anew.

Now, because we have limited time today, I’m going to focus on the most important decisions/conflicts in the CC.

First – over the nature of the legislature. There were two plans, that almost put the CC out of business because it threatened to derail the entire conference.

THE VIRGINIA PLAN

Put forward by Governor Edmund Randolph

Wanted a BICAMERAL (two house) LEGISLATURE. Lower chamber – directly elected by people, Upper chamber – elected by lower chamber (nominees came from state legislatures).

Number of representatives – PROPORTIONAL TO STATE POPULATION (favored big states, as VA is one)

Legislature could void all state laws

Executive – would be created by legislature (but no specifics on this point)

Judiciary – also created by legislature

THE NEW JERSEY PLAN

William Paterson’s suggestion

1. Wanted to keep the Aof C’s “one state, one vote” policy

2. Congress – can regulate trade/impose taxes

3. Congress – supreme law of land (idea of Parliament)

4. Executive – Congress elects a few people (not just one)

5. Executive appoints a Supreme Court

Essentially, WP liked the AofC and just wanted to fix it a little. Didn’t see the need for the creation of a new govt

Introduced the SUPREMACY DOCTRINE – asserts the priority of national law over state law. Reflected in Article VI of the Constitution

How was this conflict resolved??

GREAT COMPROMISE

Kudos to Roger Sherman (CT)

1. Bicameral legislature

a. Lower house – House of Representatives, would be directly elected by the people, and # of reps would be determined by state size (big states have more influence in this house)

b. Upper house – Senate, would be indirectly elected by state legislatures, 2/state (equalized representation among big and small states)

Critics, like Robert Dahl, maintain that the Senate compromise is not democratic at all, because suddenly a vote from a Pennsylvanian is only worth 1/8 of that of a Rhode Islander

The THREE-FIFTHS COMPROMISE

Another impasse was reached over how to handle slaves in the south. Northerners were fundamentally opposed to the practice (even though it was still legal in certain Northern states), but the South was adamant about keeping it.

In addition to not having it outlawed, Southern states wanted slaves to be counted as part of their population, to increase their representation in the HoR. (Of course, they would not be able to vote)

N and S settled on 3/5 compromise – every slave counted as 3/5 of a person. It took 2 slaves to count as 1 person and change. As the book says, it was a gift to the slave owners to have this extra representation.

Slave trade, however, was decided to be banned in 1808 at the CC. This is a recognition that slavery is a major issue in the new nation, but founders put off a full decision until much later. Of course, the question would be finally resolved in the Civil War.

Slavery was not the only issue. South was wary of the economic power of the north (north – industrialized, south – rural and agricultural), and was concerned that northern states would seek an export tax on agricultural goods.

South only agreed to allow Congress to regulate trade if it promised never to impose export tax.

Also had issues in deciding how Supreme Court would work, eventually decided on model we have now.

Madison’s role and contributions

James Madison was really the architect of the new government.

Heavily influenced by Baron de Montesquieu – a French enlightenment thinker who envisioned a balanced government that could keep itself in check

How?

Separation of powers ­ - again, a novel idea in the time it was conceived, because at that point all you had were divine kings and absolute rulers, who consolidated all power

In his book Spirit of the Laws, Montesquieu outlines how separations of power is necessary

Separation of Branches

Executive, legislative, and judicial power must not be rolled into one

Together – would enable tyranny. Separately – would ensure democracy and a multiplicity of voices

Became the MADISONIAN MODEL – separation of these branches, ENSURING THAT NO ONE BRANCH WOULD DOMINATE THE OTHERS

Each branch would be independent, and arrive at its own decisions independently.

However, in order to avoid competition, that could also lead to tyranny, Madison set it up so that they would have to work with each other.

Also implemented M’s CHECKS AND BALANCES

Executive can veto bill from legislature, legislature can censure executive

Courts can overturn laws from legislature, legislature can override it

Executive can choose nominees for SC, but legislature must approve it

SC can decide executive behavior unconstitutional, etc etc

Question: Are all three branches equally powerful now?

Finally – choosing the executive – we’ve got the mess of the electoral college, which is a mystery to most other countries

Essentially, founders feared mob mentality as much as they did tyranny – and set up a very intricate system of election that hoped to sift out radical candidates from attaining top office

Even winning the popular vote does not ensure winning the presidency. You can lose and still get it (2000). Also…1877 was a big mess too, thanks to EC. That’s how we got a president named Rutherford P. Hayes. Go figure.

Final characteristics of the Constitution

1. Popular sovereignty is ensured
2. Republican govt – delegates
3. Limited government with written laws – very different from British system, which still had absolute monarchical rule and no codified constitution (still doesn’t have a formal written constitution)
4. Separation of powers
5. Federal system that also allows for states’ rights

However, getting the document ratified (needed to be done state-by-state) was no easy task either

2 groups arose – the Federalists, who liked the new idea of a strong central government with the appropriate checks – and the anti-Federalists, who opposed the new system of government.

Together they vied for states’ votes.

The Federalist Papers – a series of newspaper editorials written by a few founders (notably John Jay, James Madison, and Alexander Hamilton). Sought to explain the system they created to the population, and tried to secure ratification this way.

Anti-Federalists wrote responses to these papers – which are not as famous as the Federalist Papers. A-Fs really believed that a strong central government would eventually become tyrannical, and would limit personal liberties. These included Samuel Adams and Patrick Henry.

Constitution finished in 1787 – all states ratified by 1790

When did the Bill of Rights come in?

As a response to the anti-Federalists, who did not see a commitment in the constitution to absolutely protect the rights of individuals, the founders decided to draft ten specific amendments which would clarify the position.

10 was never the magic number – Madison wrote 17, then cut five, then Congress only ratified 10. But the 10 are pretty all encompassing – freedom of speech, religion, bear arms (state militias), right to a balanced trial, preventing unlawful search and seizure, and self incrimination (take the fifth).

We’ll finish up the amendment process on the constitution next week, but do read Chapter 3 on Federalism, as well as ch 3 in the Brookhiser book.