Chapter 2

Constitutional

Foundations

The Setting of the Constitutional Change

• Articles of Confederation – First constitution of the U.S. – Ratified 1781

• Primarily favored the states power• Unitary Congress with limited power• No executive, No national court system• Required unanimous vote of States to change• Didn’t address economic issues, Nat’l Govt. had no

power to tax• Articles just didn’t effectively address the issues of

the young Republic

The Framers• Who attended the Constitution Convention 1787• All 55 people were White Males• Merchants, Physicians, Bankers, Farmers &

Soldiers• Average Age was 43 – Youngest 26 – Oldest 81• Wealthy & Educated – Most were lawyers• Most notable delegates were Benjamin Franklin &

George Washington.• Now let’s see what influenced the Framers of the

Constitution

The British Constitutional Heritage• Despite the American Revolution, leaders

respected the British Constitution therefore our leaders relied upon the British heritage to write the constitution.

• Middle Ages, feudalism dominated European society. Feudalism was when landless families lived on land owners land and in exchange for the land to work and security. Written charters were written up that described this relationship including the rights of the owner and worker.

British Heritage Continued• Magna Carta – Document that stands for the

principle that Govt. is limited and that everyone including the king must obey the law.

• Common Law – Judge made law – Collection of legal doctrines that came out of the many cases heard in Medieval times. Part of the the British constitution.

• British Bill of Rights – Established basic principals of constitutional Govt. – Jury trial, cruel & unusual punishment, excessive bail..

The Colonial Heritage• Mayflower Compact – Written by the

Pilgrims that set forth major principles for Plymouth Colony’s Govt.

• Although Colonist were under British rule they had their own Govt’s – Townships & Counties

• Most of us picture the Colonies w-out any form of Govt. except what the British established but they were capable of self-governing themselves and did so very effectively

Intellectual Roots of Influence• Enlightenment Period – 1600’s - 1700’s – period

dominated by human reason, not religious tradition was the principle source of knowledge and wisdom. Several notable philosophers during this time influenced the Framers

• Hobbs – Govt. depended on the consent of the governed.

• Locke – Govt. exist to serve the people and will continue to serve as long as it doesn’t interfere with their pursuit of life, liberty and property

Intellectual Influence Continued• Charles de Montesquieu – Stated best Govt.

separates the legislative, executive, & judicial branches of govt.

• Jean-Jacques Rousseau – Best govt. reflects the will of the people – Popular Sovereignty

Onset of Revolution• 1765 – British Govt. passed the first TAX on the colonist without

their consent (Stamp Act)

• Taxation Without Representation

• 1774 – 1st Continental Congress

• 1775 – 2nd Continental Congress

• 1776 – Adopted the Declaration of Independence

• Govt. has one primary purpose – To secure the “Unalienable Rights” of their citizens which are life, liberty, and the pursuit of happiness

• Govt. derives power & authority from the consent of the governed

• When Govt. violates the rights it has established to secure “it is the right of the people to alter or to abolish it and to create anew govt. in its place

What the Constitution Did• Created (3) branches of Govt.• Defined and Limited the power of Govt.• Devised formal procedures that Constitution

could be amended• To truly accomplish a viable national Govt.

the framers had to establish its’ legitimacy.• What was Legitimacy? The belief of citizens

in a Govt. to have the right to pass and enforce laws

• Establishing legitimacy was very important to the framers

Establishing Legitimacy• Govt. must possess power to be effective• Govt. must have the ability to carry out its policies

and enforce the laws• American Citizens must believe that Govt. has the

ability to exercise authority and power• Think about it, How many Americans would pay

their taxes if Govt. didn’t have the power or authority to collect?

• This is what Legitimacy is all about – Americans accepting Govt. has the authority & power

Legitimacy Continued• Legitimacy is rooted in the Preamble to the

Constitution – “We The People”

• Based on this wording there is no doubt that the national Govt. has the right to exercise authority-”its legitimacy” comes directly from the people and not from the states.

• The states gave the “Articles of Confederacy” its legitimacy.

Structuring Authority• Framers of the Constitution faced two

challenges when deciding how to structure authority of new Govt.

• First, they had to create strong Nat’l Govt. and maintain authority within the States

• Secondly, they had to deal with the issue of how to allocate authority within the Govt. itself

• In short, National and State Authority had to be Balanced

Structuring Continued• Framers had to create a Stronger Nat’l Govt. to

deal with the issues the Articles of Confederation couldn’t deal with and not threaten the traditional authority of the states

• Under the Articles the ultimate authority rested in the States. This is known as a Confederacy.

• Framers considered a “Unitary System of Govt” whereas the Central Govt. has ultimate authority and whatever authority State & Local Govt. has is given to them by the Central Govt.

Structuring Continued• Framers realized that a Unitary Govt. wouldn’t be

approved by the States so they created a hybrid or a mixture of both confederation and unitary Govt. known as a Federation whereas the authority of Govt. is shared by both Nat’l & State Govt.’s.

• What about the structuring of Authority Within the Nat’l Govt? Through the “Great Compromise” the framers established a ‘Bi-Cameral” Congress consisting of a House of Rep. and a Senate. Article I of the constitution outlines the composition and powers of congress

Structuring W-in Continued• Further, the Framers established an Executive

and Judicial branch of the govt. Article II outlined the Executive branch and Article III outlined the Judicial branch of govt.

• The Electoral College – established the body designed to select the president (Article II)

• Governmental Powers• Delegated Powers – Section 8, Article 1 –

Powers essential to Nat’l Govt operation such as power to tax, borrow money, coin money, declare war etal….

Powers Continued• Concurrent Powers – Powers granted to Nat’l

Govt. but not denied to State Govt. such as power to tax, define criminal behavior and set punishment

• Article 1, Section 8 – Necessary and Proper Clause provides for Congress to make such laws for the carrying out of all other powers known as Implied Powers

• Reserved Powers – Powers reserved to the States such as Education, Building Roads, Regulating commerce within the states borders

Limitations of Govt Powers• Writ of Habeas Corpus – Court order that

protects people against arbitrary arrest and detention by requiring officials to bring the person before the court. This may be suspended during time of rebellion OR invasion.

• Bill of Attainder – A legislative act declaring a person guilty of a crime and setting punishment without a formal trial.

• Ex post facto law – A law declaring the action criminal even if it was performed before the law making it illegal was passed.

Bill of Rights• The first ten amendments to the Constitution, which

collectively guarantee the fundamental liberties of citizens against abuse by the Nat’l Govt.

• 1st Amendment – Freedom of Expression – Speech, Assembly, Press, and Religion

• 2nd Amendment – Right to Bear Arms• 3rd Amendment - Forbids quartering soldiers• 4th Amendment – Unreasonable search & seizures• 5th Amendment – Forcing anyone to testify against

themselves in criminal trial• 6th Amendment – Excessive bail• 8th Amendment – Cruel & Unusual Punishment

Bill of Rights Continued• Full Faith and Credit – Requires each state

respect in all ways the acts, records, and judicial proceedings of all other states.

• Privileges and Immunity – Requires that the citizens of one state not be treated unreasonable by officials of another state.

• Supremacy Clause – States that the US Constitution to be the supreme law of the land, taking precedence over state laws.

Allowing for Change To The Constitution - Amendments

• Four Ways to Amend The Constitution• 1) Revolution – Toss current one and re-write

new one• 2) Amendments • A- Amendment passed by 2/3 majority of both

houses in Congress THEN Ratified by ¾ of state legislatures

• B- Amendment passed by a Convention called by Congress by request of 2/3 states THEN Ratified by conventions in ¾ of the States

Change Continued

• 3) Constitution Interpretation – process of constitutional change that involves attempts to discover the meaning of the words used in different provisions of the Constitution as they might apply to specific situations.

• 4) Constitution Construction – A form of constitution change that occurs as public officials fill in the institutional “blank spaces” left by the constitution.

Principles of American Constitutionalism

• The Rule of Law – The concept that no individual stands above the law and that rulers, like those they rule, are answerable to the law.

• Republicanism – Doctrine of Govt. in which decisions are made by elected or appointed officials who are answerable to the people, not directly by the people themselves

• Separation of Powers – The division of the powers to make, execute, and judge the law among the three branches of the Govt.

Principles Continued

• Checks and Balances – Principal that lets the executive, legislative, and judicial branches share some responsibilities and gives each branch some control over each other.

• Veto – Presidential power to reject legislation passed by Congress. Veto may be overruled by 2/3 vote of both chambers in Congress

• Signing Statements – Comments and clarifications that presidents attach to congressional acts when they sign them into law.

Principles Continued• Congressional Authorization – Power of

Congress to provide the president with the right to carry out legislated policies

• Confirmation – Power of U.S. Senate to approve/disapprove a presidential nominee for an executive or judicial post.

• Treaty Ratification – The power of the U.S. Senate to approve/disapprove formal treaties negotiated by the president on behalf of the nation

Principles Continued

• Appropriation of Funds – Actions taken by Congress to authorize the spending of funds

• Impeachment – A formal charge of misconduct brought against a federal public official by the House of Representatives. If found guilty of the charge by the Senate the official is removed from office.

• Judicial Review – The power of the courts to declare acts of Congress to be in conflict with the Constitution.

Principles Continued

• National Supremacy – The principle, stated in Article VI, the “supremacy clause” that makes the constitution and those laws and treaties passed under it the “Supreme Law of the Land”

Applying the Principles

• Living Constitution – Means for adapting to social, political, and economic change.

• Enduring Constitution – Fundamental precepts derived from the Framers to be applies to issues.

• Political Constitution – Rules to be used or changed.• Originalism – Judicial approach to interpreting the

constitution that seeks to rely on the words of the Framers.

• Textualism – Judicial approach to interpreting the constitution that relies on a literal or plain words reading of the document.

Chapter Summary• The Framers of our Constitution achieved their goal of

writing a document to both create and guide a nation.• The Framers resolved many of the issues of their time

and had the vision to write a document that would endure time and allow to be amended in time

• The Framers knew there would be different interpretations of the Constitution yet understood that even then

• Is the myth that the Constitution a Living Document accurate ? What do you think?