The Constitution

Making the Constitution• American colonies united under the Articles of

Confederation • Constitutional Convention met to address defects in

the Articles– Instead, wholly new Constitution

proposed

• Controversial constitution– Some saw it gave too much power

to national government

• Goal was liberty – need to protect liberties within Constitution– Liberties based on natural rights ordained by nature &

history (and God)– Rights unalienable – cannot be taken away & not based on

preferences of the governing body– Life, liberty, and property (later changed to “pursuit of

happiness”)

Weakness of the Articles• Effected 1781 as more of a league

of friendship– Could not levy taxes or regulate

commerce– Each state retained sovereignty &

independence

• Congress did have power to make peace ratified treaty with England in 1783– Could also coin money– Appoint army officers– Run post office

• No national judicial system• All 13 states had to agree to

amend the Articles

Constitutional Convention• Delegates assembled in Philadelphia

to revise the Articles• Took 4 months & wrote new

constitution• Primary goal of protecting liberty,

but no initial political theory to dictate what type of government would guarantee liberties & rights– Wanted protection against a tyrant– Looked at state constitutions for

examples– Created new government unlike any

that existed before– Strong enough to preserve order but

not strong enough to threaten liberty

Two Plans• Virginia Plan– Strong national government with 3

branches (legislative, executive, & judicial)– National legislature would have supreme powers on all

matters on which separate states were not competent to act, as well as power to veto state laws

– At least one house of the legislature would be elected directly by the people

• New Jersey Plan– Smaller states feared

representation based on population– Each state would have 1 vote

• Great Compromise– House of Representatives

apportioned based on population & elected by the people

– Senate consisting of 2 senators from each stat to be chosen by the legislature• An amendment would change this to popular election

Constitution & Democracy• Intended to create a republic –

government in which a system of representation operates

• State legislatures would choose senators

• Electors choose president• Judicial Review also limited

power of popular majorities– Declare laws unconstitutional

Key Principles• Federalism – political authority divided between national

and state governments– Enumerated Powers – listed specifically for the national

government• Declare war, print money, make treaties, conduct foreign affairs,

regulate commerce among state s& foreign nations

– Reserved Powers – rights given to the states• Issue licenses, regulate commerce within states

– Concurrent Powers – shared between national & state governments• Collect taxes, build roads, borrow money, have courts

• Separation of Powers – political powers shared by 3 branches of government– Executive – President– Legislative – Congress– Judicial – Supreme Court– System of checks & balances to ensure none gets too much power

Reading the Constitution• Preamble• Article 1: Legislative Branch• Article 2: Presidency• Article 3: Judiciary• Article 4: States• Article 5: Amendment Process• Article 6: Legal Status of the

Constitution• Article VII: Ratification• Signers• Amendments 1-27

Separating Power• Need to separate powers based in experience with

England & Articles of Confederation – People will seek own advantage out of politics– If self-interest is unchecked, people will exploit others

• Could have sought to cultivate similar mindset among Americans – Promote frugality, industry, temperance, simplicity, etc.– Would require government too strong & thus too

dangerous to liberty

• Instead, harness self-interest as source of unity and guarantee of liberty– Divide new offices of government– Give each office necessary means & motives to resist

encroachments of others– Ambition must be made to counteract ambition

Checks & Balances

• Separate institutions share powers• Each can partially check the powers of others• Congress

– Check President• Refuse to pass bill• Pass law over presidential veto• Use impeachment powers• Refuse to approve presidential appointment (Senate)• Refuse to ratify treaty the president signed (Senate)

– Check Federal Courts• Change number & jurisdiction of lower courts• Use impeachment to remove judge• Refuse to approve a person nominated to be a judge (Senate)

• President– Check Congress by vetoing a bill it has passed– Check federal courts by nominating judges

• Courts– Check Congress by declaring a law unconstitutional– Check president by declaring actions by him or his subordinates

unconstitutional or not authorized by law

• Other informal checks– President withhold information from Congress– Congress mounts investigations

Federalism• Divide power between state government

& national government– Provide double security to rights

of people– Check one another

• Good for America, according to the framers of the Constitution– Many factions would seek own advantage– One faction might dominate part of

government in one place, but not all of government

– Gives factions ability to gain some – but not all – power

Dual Federalism – views the constitution as giving a limited list of powers to the national government, leaving the rest to sovereign states

Primarily foreign policy & national defenseEach level of government is dominant in its own sphereSupreme Court mediates between national gov’t and states

Cooperative Federalism – stresses federalism as a system of intergovernmental relations in delivering governmental goods and services to the people

cooperation among various levels of governmentMarble Cake Federalism – all levels of government are involved in a variety of issues and programsCompetitive Federalism – National government, 50 states, and local governments

compete with each other to put together services and taxesPermissive Federalism – state’s share of power rests upon the permission of the

national government

Federalists vs. Antifederalists • Federalists – supporters of the Constitution & a strong national

government• Antifederalists – opponents of the Constitutions who favored

weaker national government– Supported states’ rights– James Winthrop, Melancton Smith, Patrick

Henry, George Mason, + yeomen farmers in rural areas

– Biggest threat to future of US = potential for the government to be corrupt & seize more and more power• Very real threat (British legacy)• Didn’t want tyranny

– The proposed Constitution threatened a road of political corruption• Presidential veto power disturbing• Court system seemed likely to encroach on local courts• Lower house of legislature small, likely to be filled with elites• Wouldn’t really know constituents• Thought Congress would pass oppressive taxes enforced by a standing army

Anti-Federalists cont’d• Main issue: Liberty

– Antifederalist view: liberty can only be secured in small republics where rulers were physically closed to & checked by the ruled• Strong national government would be distant & use powers to

annihilate or absorb states’ functions• Thought nation needed to be a loose confederation of states

– If a strong national government was created, it should have more restrictions than those in the Constitution

– Wanted a Bill of Rights in the Constitution

• James Madison refuted critics in Federalist No. 10 and No. 51– Liberty is safest in large republics with many opinions &

interests, which makes it hard for tyrannical majority to form or organize

– Coalitions would have to form so different interests could rule– Suggested national government should be at some distance

from the people & insulated from momentary passions – people didn’t always want to do the right thing

Federalist No.51• James Madison – 1788• Defends system of checks & balances

in the Constitution• Each branch has power to check other

two branches• Each branch dependent on the people• Also discusses how republican government

serves as a check on the power of factions & tyranny of the majority– Rights of individuals will be in little danger from

interested combinations of the majority– Example: Would you feel safer having a “different”

opinion in a small town or a big city?

• Preserve liberty by ensuring justice

Modern Views of Constitutional Reform

• Improvement a debate since ratification

• Two types of critics:– Think federal government is too weak• Centralists like strong national government

– Think federal government is too strong• Decentralists like more power in state

governments

Reducing Separation of Powers• Gridlock problem

– Nation faces challenges that require prompt, decisive, and comprehensive action

– Face long delays & bargaining from Congress– Need president to be able to formulate & carry out

policies free from pressures & delays from interest groups and members of Congress

• Would increase presidential authority & help voters hold president & his part account able for their actions

• Changes could make matters worse or have uncertain effects– Weaken political parties– Perpetual political campaigning– Longer presidential term w/o reelection could make them

less concerned about what the American people want

Proposals to Reduce Separation of Powers• Allow president appoint members of Congress to serve

in the Cabinet• Allow president to dissolve Congress & call for special

election• Allow Congress to require president to face country in

special election • Require presidential & congressional candidates to run

as a team in each congressional district• Have president serve single 6-year term instead of two

4-year terms• Lengthen terms of House of Representatives from 2 to 4

years• Proposed actions would make American system more

like the British parliamentary system– Prime Minister is leader of the majority in the British

Parliament– Has Britain done better in dealing with problems of economic

growth, national security, and environmental protection?

Making the System Less Democratic• Government does too much, not too little• Democracy can produce bad results if gov’t caters to special-

interest claims of citizens rather than long-term values• Political system now attends to individual wants, not general

preferences– Farmers, industry, elderly, students, etc.– Campaign by promising to do more for dissatisfied groups

• Propose constitutional amendment limiting the amount of money the government could collect in taxes or require a balanced budget– Could be overridden by Congress– Not apply in wartime– Force Congress & president to look at the big picture

– spending – not just to operate the adding machine– Have to allocate spending among rival claimants

• Enhance presidential power to block spending by giving a line-item veto– Veto a particular part of the bill & approve the rest– Many governors have this power

• Devise set of laws or amendments to narrow authority of federal courts

Devolution Revolution• Effort to slow growth of federal

government by returning many functions to the states

Summation of Constitution• Framers sought to protect liberty & order• Constitution combined popular consent,

separation of powers, and federalism• Prevent tyranny• National and state governments had

independent authority• Ensure neither large nor small states would

dominate national government• Struggle for ratification based on differences

of opinion on whether state or national government would be best protector of personal liberty