The Constitution and Democracy

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The Preamble

Key Principles of GovernmentFounders did not intend to create a direct democracy

Examples:Popular Sovereignty – Consent of the governed –Popular vote was only in the H.R.

Separation of Powers between the branches

Checks and balancesthepomegranateapple.wordpress.com

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Checks and balances

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Key Principles of GovernmentFederalism – power

was divided between the national and state governments

Judicial review – although not listed in the Constitution, little doubt that the Constitution had to be safeguarded from popular passions

Difficulty of the amendment process

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FederalismPolitical authority that is divided

between a national government and state/local governments

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Government and Human NatureOption A – improve human

nature – Americans would have to become good people before they could become a good government

Option B – Madison (and others) – Make republican government possible in the absence of “political virtue”

Self- interest that could lead to factionalism could be harnessed by appropriate constitutional arrangements – separation of powers and checks and balances

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The Constitutional DilemmasHow does the government guarantee liberty, while providing the necessary protections and services to it’s citizens?

The Founding Fathers realized that the very protection that people desire, will have to limit personal freedoms.

The Constitutional DilemmasIssues that needed to be reconciled:

National vs. State PowerMajority vs. Minority RightsSmall States vs. Large StatesSlave States vs. Free StatesMerchant Interests vs. Agrarian Demands

Anti-FederalistsIt is natural to a republic to have only a small

territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected. Montesquieu

The Anti-federalist ViewLiberty could be secure

only in small republicsThe nation needed, a best

a loose confederation of states with most of the power being wielded by the state legislatures (national government was too distant from the people)

If there was a strong national government, there should be many restrictions placed on it

A bill of rights needed to be added

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Federalist PapersThe Federalist Papers are a series of

85 articles, written by James Madison, Alexander Hamilton, and John Jay, advocating the ratification of the U. S. Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between Oct. 1787 and August 1788.

Federalist No. 1o is an essay written by James Madison. It was published under the pseudonym Publius, the name under which all the Federalist papers were published.

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Federalist No. 10Faction – “a number of citizens,

whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The most common source of factions were the unequal distribution of property

A republic was needed to protect individual liberty from majority rule – protect the weaker party – esp. personal security or the rights of property

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Federalist No. 10How to control factions?Factions will destroy liberty –

“liberty is to faction what air is to fire”

Create a society that is homogenous in its opinions? – Impossible –Soviets

Madison emphasizes economic stratification – factions naturally exists because of differences in people’s skills and abilities

“The latent causes of faction are thus sown in the nature of man.”

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Federalist No. 10

Since you can’t stop factions, they can only be limited by controlling their effects

Liberty is safest in “extended” (large) republics – develop resistance to factions (special interests)

Because of the size of the republic, coalitions (an alliance of factions) would be required to provide solutions – this would moderate the decision-making process, because this would require accommodations made to a diversity of interests and opinions

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Federalist No. 10Will a having a large

constituency provide for better representation?

Does the protection of minority rights delay, slow down, and hamper the will of the majority? Does Madison prevent action?

The problem is partially solved through federalism – local matters will be under the control of the state and local officials

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The Constitution and Democracy

Federalist No. 51Advocates separation of

powers within the national government

Appropriate checks and balances must be created

“Ambition must be made to counteract ambition”

Legislative branch is the strongest, that is why it must be divided

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Federalist Papers 10 and 51

Governments should be somewhat distant from the momentary passions of the people – Governments needed to be designed to prevent both the politicians and the people from making ill-considered decisions

No bill of rights was necessary

Madison’s arguments shape the debate, but political realities and recent experiences with the Articles probably had the greater effect on passage of the Constitution

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Resistance to a Bill of Rights

They were unnecessary because the state’s had their own bill of rights

The federal government had specific, limited powers – By adding a bill of rights later generations might assume they had he power to do anything not strictly forbidden

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Constitution Guarantees - Individual LibertiesHabeas corpus – an order

to produce an arrested person before a judge

Bill of Attainder – a law that declares a person, without a trial, to be guilty of a crime

Ex post facto law – a law that makes an act criminal although the act was legal when it was committed

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Constitution Guarantees - Individual Liberties

Jury trials in all criminal cases

Citizens entitled to the privileges and immunities of all other states

No religious tests for office

No laws impairing contracts

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Getting The Constitution PassedBypassed the

state legislaturesRequired

ratification by conventions in at least nine states

The ratification process was technically illegal

Framers knew that unanimity was not possible

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Bill of RightsTwelve were approved by Congress, ten were ratified by the states – went into effect in 1791

They did not limit the power of state governments over their citizens, only the Federal Government

It wasn’t until the 14th Amendment that the Supreme Court extended the guarantees of the Bill of Rights to state governmental actions

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Motives of the Framers

Charles Beard, 1913 An Economic Interpretation of the Constitution – argued that the wealthy urban and commercial classes, especially those who held IOU’s from the Revolutionary War supported the Constitution for personal gain

Over time statistical evidence has shown that economic interests can not be used exclusively to explain the decisions of the Founding Fathers

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Motives of the FramersSlave owning delegates did

play a role, but others tried to limit their effects

Ownership of the public debt had no significant effect on how the Framers voted

The more important variable was the representation of state’s interests

Voted as much on personal beliefs as on economics

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Constitutional Amendments

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Constitutional AmendmentsA national convention for

proposed amendments has never been called. The fear is/was that the convention would consider other amendments outside of the realm of the original purpose blogs.msg.com

The 21st Amendment (repealed the 18th Amendment – prohibition) is the only one that has been ratified by state conventions. The framers of the Constitution wanted a means of sometimes bypassing the state legislatures in the ratification process.

Constitutional AmendmentsA state ratifying

convention has no modification or proposal powers. It may only debate upon, and then either approve or reject, the proposed amendment, unlike a convention to propose amendments to the U.S. Constitution. Delegates in each state are chosen through an election which must take place no later than one year after having been called by its governor.

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Informal Changes to the ConstitutionCongressional Actions

– pass lawsCreation of the

Federal Court SystemCreation of the

Executive Departments and Independent Agencies

Use of the necessary & proper clause to expand/clarify federal powers

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Informal Changes to the ConstitutionThe Executive Branch –

enforce the lawsExecutive Agreements

between the President and other heads of state

Use of military without a declaration of war

The Judiciary – interpret the laws

Judicial Review: Marbury v. Madison

Desegregation: Brown v. Topeka

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Informal Changes to the Constitution

CustomsThe State of the

UnionThe CabinetTwo term Presidents

prior to the 22nd Amendment

The Presidential Nominating Process

The Congressional Caucuses

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Contemporary ComplaintsGovernment does too much

Limit taxesRequire a balanced budget

Line-item veto Limit the authority of the courts

Government is too slow/indecisive

President needs to be more powerful

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Contemporary SolutionsAllow Congress members to serve concurrently in Cabinet

Allow president to dissolve Congress and call for a special election

Empower Congress to call for a special presidential election before the end of a president’s term, when the president has lost the nation’s confidence

Contemporary SolutionsRequire presidential/congressional candidates to run as a team in each congressional district

Establish single six-year term for president

Lengthen terms in House to four years so elections would be concurrent with the president.