Unit IB : Constitutional Underpinnings

The U.S. Constitution

• What is it??– Unique, novel, born of necessity and political division– Boring, rational, mechanical prose (thanks Goveneur Morris!)– Blueprint for a federal government– A bundle of Compromises– An experiment– A conservative movement achieved by liberal means– The “Supreme Law of the Land”– “Novus Ordo Seclorum”– A generational document– An imperfect document

The War for Independence 1765-1781

• Goal: LIBERTY!– Achieved within Empire 1765-1775• Boycotts (most famous in Williamsburg)• Protests

– Boston Tea Party– Stamp Act Congress– 1st CC– Etc…

– Achieved through war/independence after 1775

Colonial Thinking

• English Constitution failed to check political power (whose?)

• All English politicians are corrupt (colonial?)• Liberties fought for based on “natural rights”• War is POLITICAL , not economic

War of Ideology

• Make political authority legitimate (how?)• Secure personal liberties (which ones?)• Government based on consent (who votes?)• Political power granted by written constitution• Legislature superior to Executive (why?)

States Adopt Revolutionary Ideas

• Written State Constitutions (Fundamental Orders of Conn)

• Representative Governments (VA House of Burgesses)

• Bill of Rights (based upon Virginia Statute of Religious Freedom and F.O. of Conn.)

Writing & Adopting the US Constitution

• Historical/Philosophical/Intellectual Foundations• Greeks: Democracy– Equality of all persons– Popular Sovereignty– Voting rights/Citizenship

Ancient Rome

• Republican Government/The Republic• Separation of Powers• Checks and Balances

English Constitutionalism

• Magna Carta– Signed 1215 by King John– Democratic Ideas• Separate legislatures ( The Great Council/Parliament)• No taxation w/out representation• Freedom from unjust arrest (arrest warrants)• Trial by jury of peers (nobles only)

English Constitutionalism

• The Petition of Right– Signed in 1628 by King Charles I– Democratic ideas:• No taxation w/out representation• Can’t be jailed prior to jury verdict (bail)• No quartering of troops in peacetime• No martial law in peacetime

English Constitutionalism

• English Bill of Rights– Signed in 1689 by William and Mary of Orange– Democratic Ideas:• “free” speech and press• No excessive bail or fines• No cruel and unusual punishments• “free” election for Parliament (Common created)• All laws require the consent of Parliament (the people)

John Locke

• Social Contract Theory– Natural Rights– Government by consent– Right to revolution– Etc…

Henri, the Baron deMontesquieu

• Power corrupts• Separation of Powers• Checks and Balances• Need for a written constitution

The Federalist

• Creation of/explanation of a federal Republic– Federal: powers constitutionally divided w/

supremacy given to the national gov’t– Republic: people elect representatives to make the

laws

Unique American Experience

• Location• Land• Diversity (ethnic, religious, racial, etc…)• New “American” Culture

Colonial/American Economic, Political, & Social Developments

• “Salutary Neglect”• French and Indian War• Changes in policy

Revolutionary Period

• Causes of Revolution– Taxes !– Trade restrictions– Protests lead to violence (Boston Massacre, Tea

Party, Williamsburg Boycott, etc…)– Arrest warrants for legislators, leaders, etc…– Etc…

Declaration of Independence July, 4, 1776

• Social Contract Theory?– “all men created equal”– Natural rights– Purpose of gov : protect rights– Government by consent– Right to revolution

Declaration of Independence

• Committee of Five– John Adams– Ben Franklin– Robert Livingston(John)– Roger Sherman– Thomas Jefferson

Declaration of Independence

• Jefferson/Democratic Ideals– “All men are created equal…”– “…they are endowed by their creator with certain

inalienable rights…”– “…that among these are life, liberty, and the

pursuit of happiness”– “that whenever any government becomes

destructive to these ends it is the right of the people to alter or abolish it…”

Purposes of Declaration

• Get international support• Increase enlistments• Turn colonial sentiment to favor

Revolution/Independency• Damage “British” troops morale• Propaganda• Explain why we are fighting• Create a democratic gov.

Was it a success?

• French gave money, ships, troops, weapons, etc..

• Colonial enlistments increased dramatically• Colonial sentiment appears to favor

Independency• “British” desertions increase• Etc…

State Constitutional Conventions

• Each State meets to write a new “charters” or State Constitutions– Election of representatives (US Congress) eligibility

to vote– Separation of powers (3 branches)– Election of Governors– Checks and Balances– Limited Government– Etc…

The Articles of Confederation

• Written by Richard Henry Lee in 1778• Ratified in 1781• Need for? National Constitution necessary• Adoption: Unanimous consent required

Articles of Confederation• Weaknesses:– National gov. cannot effectively tax– No national law enforcement– No Executive Branch– No Judicial Branch– Congress cannot international or interstate trade– Each State gets 1 vote in Congress– No mandatory power to raise army/navy– National laws needed a 9 of 13 vote– Amendments required unanimous consent of the States– Only a “firm league of friendship”; not a union

Confederation Period (Critical Period)1781-1787 (89)

• Newburg Mutiny, 1783• Alexandria and Mount Vernon Conventions (1785)• Annapolis Convention, 1786• SHAY’S REBELLION, 1786

Constitutional Convention, May-Sept 1787

• Purpose: “revise” the Articles of Confederation

Who are the delegates?

• 56 men from 13 States• Primarily well-educated (college grads)• Protestants• Propertied Class• Predominately lawyers• Politicians• Concerned w/ property rights and contract law• Feared the tyranny of the majority• Etc…

Significant Delegates– George Washington: President of the Convention– Alexander Hamilton: advocate of stronger Nat’l Gov.; would have

preferred a monarchy– James Madison: author of the Virginia Plan; created Federalism, took

copious notes of debates– Edmund Randolph: Gov of VA; presented the VA Plan– William Patterson: author of the NJ Plan– George Mason: champion of Bill of Rights– Gouveneur Morris: author of the Constitution– Ben Franklin: “the negotiator”– Roger Sherman: Quaker Minister and creator of Great Compromise– The Pinkneys: SC delegates who insured the survival of slavery– George Read: creator of the idea of a Supreme Court– Etc…

Who isn’t there?

• Thomas Jefferson: Ambassador to France• John Jay: Ambassador to Spain• John Adams: Ambassador to England• Sam Adams: lost election!• Patrick Henry: “smelt a rat” and refused to

attend• John Hancock: indicted for war profiteering

and awaiting trial (found not guilty)

Reasons for Swearing to Secrecy

• Keep the media from influencing outcome• Allow delegates to discuss all issues without

interference or fear• Weren’t supposed to be writing a new

constitution!

Main(Major) Problem they were sent to resolve!

• How strong should the national government be?– Fear of tyranny– What about States’ Rights?

Major Characteristics of Madisonian Model of Government

• Federalism• Proportional Representation in the Legislature• Direct election of Executive and Legislative by

the people of the States• Single person executive• Independent Judiciary (life appointments)

Slavery Question(s)• Should slavery remain legal?• Should there be restrictions on the slave

trade?• Should the States or National government be

able to tax slaves as property?• Should slaves be counted in the census?• Should new territories be allowed to

determine for themselves if they be slave or free?

Virginia V. New Jersey PlansIssue Virginia Plan New Jersey Plan

Executive Branch One President; popularly elected by the States

Five person team, elected by the State Governors

Representation in Congress Two Houses; proportional representation

One House; equal representation

Judiciary Life appointments Election by the States

System of Government Federalism Confederacy

Major Compromises

• Great/Connecticut/Sherman Compromise– Issue: representation in Congress– VA Plan: proportional two House Legislature– NJ Plan: equal representation in one house

legislature– Compromise created by Sherman& Franklin• Bicameral Legislature• Senate: Equal Representation (2 per State)• House of Reps: Proportional Representation (1 rep

minimum)

Executive Compromise

• Issue: what should the Executive Branch look like and how should it be selected?– VA: 1 person directly elected by the people – NJ: 5 person team, elected by the Governors– Compromise:• One President• Election indirectly by the people via Electoral College• Renewable 4 year terms

3/5ths Compromise

• Issue: should slaves be counted in the census to determine the population of a State for the purposes of determining representation in the House?– South: YES!– North: NO!– Compromise: slaves will count as 3/5ths of a

person in the census

Commerce and Slave Trade Compromise

• Issue: how will the new national government raise revenue to pay the war debt?– South: fear taxes/restrictions on slave trade– North: fear taxes/restrictions on trade– Compromise: • No taxes on slaves• No restrictions on slave trade for 20 years• No export duties• Trade agreements with other nations will need Senate

approval

Basic Changes in GovernmentIssue Articles of Confederation U.S. Constitution

System of Gov Confederate Federal

Branches of Nat’l Gov Legislative Only Leg, Exec, Jud

Type of legislature Unicameral Bicameral

Representation Equal Equal and Proportional

Law Enforcement States only Fed and State

Taxation Limited; States collect and “shared” at will

Federal and State taxes collected independently

Regulation of Trade States only Federal regulation of interstate trade

Individual Liberties Varied from State to State National Bill of Rights guarantees universal rights to “all persons”

Military States “volunteered” troops when wished

New National army and navy created and under authority of the Pres

Ratification of the Constitution

• Method: two part process– 1. Delegates at National Convention (majority

needed to propose; 39 of 56 signed)– 2. Delegates at 13 State Conventions (need 9

States to vote yes)

Federalist Arguments for Ratification

• National government under the Articles is too weak to protect us from other nations

• National government under the Articles cannot effectively tax, regulate trade, or protect rights (property)

• National government under the Articles cannot enforce the law

• Massive war debts cannot be paid under current system• Economic problems (recession, inflation, debt, et…)

require a stronger national government

The Federalist Papers

• 65 editorials published in NY newspapers• Written to convince delegates to the New York

Convention to vote yes on ratification• Written by Hamilton(40), Madison(20), & Jay (5)• Written under the name “Publius”• Defended and explained every part of the

Constitution in the language of the day• One of the best and most effective examples of

political propaganda

Anti-federalist Opposition

• Famous Anti-federalists include:– George Mason (demanded a Bill of Rights)– Thomas Jefferson– Patrick Henry– John Hancock

Anti-federalist Arguments Against Ratification

• No mention of God or religious freedom• Ratification process not required to be

unanimous (only 9 of 13 needed)• Took away important States’ Rights• Gave the National Government too much

power• No protection of civil liberties (Bill of Rights)

Constitutional Principles

• Government by Law: – Definition: government is created by a

constitution or charter (rule of law)– History of: more than 3000 years old (Sumaria)– Written Law: began with Hammurabi’s Code in

1750 BCE (Sumaria)– Advantages:• Gives people notice of crimes/punishment• Limits governments powers

Supremacy/Constitution as Highest Law

• Article VI, Section 2: The Supremacy Clause• Conflicting law is unconstitutional – Judicial Review of Law– Marbury v. Madison

Representative Government

• Definition: government in which the people elect representatives to make the laws

• Republican/Republic/ Indirect Democracy• Majority Rule/Minority Rights: Congress

represents the majority while the Courts protect the minority

Separation of Powers

• Purpose: prevent any one branch from becoming too powerful

• Article I: Congress (make law)• Articles II: President (enforce law)• Article III: Supreme Court (interpret law)

Checks and Balances

• Purpose: place limits on each of the branches of the National Government

Checks and Balances Cartoon

Legislative Checks

• On itself:– Bills must pass both Houses with a majority vote– House impeaches/ Senate convicts or not– House introduces all $ bills/ Senate passes or kills– Proposal of Amendments require 2/3rd vote of

both Houses – Etc…

Legislative Checks on the President

• Over-ride Veto (2/3rds vote)• Deny funding• Not approve treaties (2/3rd vote) Senate• Not approve appointments (majority vote)Senate• Not approve commitment of troops (War Powers

Act)• Investigate• Impeach (House) and Convict (Senate)• Legislative Oversight

Legislative Checks on the Court

• Create lower federal courts• Set the number of judges/ justices on a court• Impeach/convict judges• Approve/not approve appointments• Designate pay and benefits (limited)• Propose Constitutional Amendments!!!!!

Executive Checks on Congress

• VETO!• Call special sessions (limited)• Adjourn a session (limited)• Appeal to the public (bully pulpit)

Executive Checks on the Court

• Appoints all Judges and Justices (life)• Court Packing (limited)• Influence public opinion (bully pulpit)• Pardon federal felons

Judicial Checks the Executive and Legislative Branches

• Judicial Review: over-turn actions of Pres or laws passed by Congress by declaring them unconstitutional

• Requires citizen action (lawsuit)• Marbury v. Madison: Chief Justice Marshall

declares that the Court has this power based upon Article VI: Supremacy Clause

Does the principle of Checks and Balances make urgent problems unsolvable?

• Yes?• No?• Maybe?

Is the President made more powerful by checks and balances?

• Veto power? Can it really be over-ridden?• Commander-in-Chief? Does the War Powers

Act really limit this power?• Bully Pulpit?• Popularity=Action?

Proposals made to reduce the gridlock that results from Checks/Balances

• Choose Cabinet from Congress?• Allow Pres to dissolve Congress and call for new

elections?• Empower Congress to call for special elections for

Pres?• Require Pres/Congress Teams (same Party)?• Single 6 year term for Pres?• Lengthen House term to 4 years?– ALL would require a Constitutional Amendment!!!!

Adaptability

• Definition: the ability of the Constitution to change over time

• Formal Amendments:– Proposal:• 2/3rds vote of Congress (House and Senate)• 2/3rds vote of delegates to a national convention

– Ratification:• 3/4ths vote of State Legislatures (38 of 50)• 3/4ths vote of State Ratification Conventions (38 of 50)

Adaptability

• Informal Amendments: no change in actual wording, change in perceived meaning

• the key to change is the public’s acceptance of changed meaning– Judicial Review: #1– Implied Powers: Article I Section 8 Clause 18 (Congress)– Presidential Actions: ie. War Powers– Party Activities: ie. Primary Elections– Unwritten Constitution: vague language that lends itself

to interpretation

Federalism

• Definition: division of power between national government and the States

• Madison: created it as a compromise between the unitary system and confederacy

Advantages of Federalism

• Citizens have multiple alternatives for political action

• Blocks the power of interest groups since change would require National and State lobbying

• Encourages experimentation with new programs and ideas

• Allows for diversity in the law among the States

Disadvantages of Federalism

• Confusion for citizens; don’t know who to contact about an issue (Fed, State, Local?)

• Minority groups can block the majority (civil rights)• Diversity in policy among the States can create

inequality (health care in MA)• Diversity in policy among the States can create

confusion and inequality (driver’s licenses)• Can be wasteful and expensive to have multiple

levels of government (dept transportation)

McCulloch v. Maryland, 1819

• Issue(s):– Can the States tax the assets/property of the

National Government?– Can Congress use it’s implied powers? What does

implied powers mean?– Is a national bank a “necessary and proper” use of

Congress’ implied powers?

McCulloch v. Maryland

• Decision: written by Chief Justice John Marshall– Congress can do anything that is “necessary and proper”

to carry out its duties– Created a national bank falls within the scope of necessary

and proper use of implied powers– States may not tax the national government and the

national government may not tax the States.– “The power to tax is the power to destroy.”

U.S. v. Lopez , 1995

• Issues for the Court:– Does the Commerce Clause allow for the National

government to regulate gun possession within the States?

– Can Congress use its’ implied powers to pass the Gun Free School Zones Act?

– Does the Federal Gun Free School Zones Act violate Mr. Lopez’s Second amendment rights to keep and bear arms?

– Does the State law prohibiting possession of guns in a school zone violate 2nd amendment rights?

U.S. v. Lopez, 1995

• Decision of the Court:– The Commerce Clause does not give authority to

Congress to regulate gun possession – The Gun Free School Zone Act is not permitted under

Congress’ implied powers; gun regulation/possession is a State issue.

– The Act did not violate Mr. Lopez’s 2nd amendment rights– The Act is unconstitutional and voided (federalism).– The State statute is valid and Mr. Lopez may be

prosecuted under State law.

Dual Federalism

• The idea that State and Federal powers are two distinct and separate areas and have no overlap.

• The “Layer Cake” of Federalism

Cooperative Federalism

• The idea that State and Federal powers are often shared

• The “marble cake” federalism

Types of Federal Grants

• Block Grants: a consolidation grant; numerous programs are funded from the Feds using a formula to determine the amount of $ per State (ex. Community Development Grant) States prefer!

• Categorical Grants: a very specific grant that is closely regulated and restricted. Extensive strings are usually attached. Formula based, usually based on need. (School Lunch Program) Feds prefer!

Types of Federal Grants

• Formula: $ granted is based on a mathematical formula (need, effort, population), narrow scope of spending

• Project: $ granted is based upon the completion of a project (research, building, etc…)

Original Grants

• Land Grants: revenues from sales of public lands in each State would be set aside for education

• Cash Grants: federal funds would be given to the States for projects (Interstate Hwy)

Revenue Sharing

• Nixon and Reagan• Give a large chunk of fed funds to the States

with few strings or requirements for spending• Called “New Federalism”• Problems?

Attractiveness of Grants:

• Feds like Categorical Grants (more control, States pay a % of costs, etc…)

• States prefer Block Grants(less fed control, fewer strings, fewer matching funds)

Changing Purpose of Grants

• Original Purpose: help the States with their needs

• New Purpose: “force” the States to comply with federal mandates by providing funds (or some of the funds) for the project/program.

“Intergovernmental Lobby”

• What is it? People who are hired by States and localities to influence the federal government

• Why? Get $ or programs for your community• How successful? VERY! Congress grants

thousands of requests annually. • Justification: Someone will get the

money/program, why not us?

Politics of Federal Aid

• Block v. Categorical– Block: more freedom/flexibility for the States– Categorical: more federal control over how money

is spent; “strings attached”!

Importance of the Census

• Many grants are formula grants; $ given is based upon a States’ population– If the census missed your area….– If the census over-estimated your area…– If the census was done during the Ike evacuation

period….

Federal Aid v. Federal Control

• If you take the money…………– You have to comply with all fed laws/regulations– You have to spend the money as designated– You have to hire based on fed guidelines– You have to complete all federal forms

It may end up being more costly to take the $!

Is federal aid really free?

• The perception is that it is free $• Reality– Someone is paying (taxes)– Costs to the States include• Matching funds• Paperwork costs• Hiring criteria• Compliance w/ laws and regulations• Etc…

States Response to LESS $

• Figure out new ways to run existing programs with less $ or new sources

• Greater influence over how programs are managed/run

• Increase in power/imagination (Workfare)

Examples of Federal Mandates for State and Local Governments

• Highway Safety Amendments– Change in striping along interstate– New signage requirements– Size of medians and shoulders increased– Electronic message signs– Union wages paid to workers– Etc…

Asbestos Emergency Response Act

• Proper disposal of asbestos that is removed• Tenting of the buildings as asbestos is

removed• Union wages • Public notification of removal• Etc…

Handicapped Children’s Protection Act

• Appointment of legal guardian (child advocate) as needed

• Guarantee of a free, appropriate, public education for all children

• Equal access to public facilities• Free medical care• Etc…

Safe Drinking Water Amendments

• All public water fountains must be checked by the State Dept of Ag to ensure they have clean filters

• All States must report annually to Congress on their water quality

Drug-free Workplace Act

• Any employee that transports the public must be tested for drugs/alcohol

• Any employee who is involved in public safety must be tested

• Employees who test positive must enter a program (at own expense) and may be terminated

• Employers can get a grant to cover the costs of testing from the States

Clean Air Act Amendments

• States must report air quality to Congress quarterly• States must inspect manufacturing plants for filters and

pollutants• States must fine/sue companies that violate the law• States must “encourage” local power companies to find

cleaner, renewable sources of power

Americans With Disabilities Act

• All public facilities must be accessible to all • Elevators must have braile and sound effects for the

blind• All ATM machines must have accommodations for the

disabled• Disables students must be given a free and appropriate

education using the least restrictive means possible

No Child Left Behind Act (NCLB)• All States must test students in reading, writing, math, and science to

assess mastery• States must provide Congress with testing results• Schools will be rated by the States based on scores• Schools will report their students’ completion rate, rather than dropout

rate• Schools who do not show annual yearly progress (AYP) may be taken over

by the States, Federal government, or be closed. • Students who attend an under-performing school may qualify for a waiver

to attend another public school or a local private school at State expense

Unfunded Mandates

• Laws or provisions in a law that require the States to provide a service but do not provide the funding to the States to do so.

• EX. – NCLB– Americans w/ Disabilities Act– Asbestos Emergency Response Act– Etc…

The End!!!

• Study for your test……………..

Essay Topics

• Constitutional Convention: – Purpose– “problem” to resolve– VA Plan/NJ Plan– Great Compromise

• Federalism:– Fiscal, cooperative, dual– Advantage– Disadvantages

More Essay Topics

• Beard and Roche:– Explain Roche’s theory about Framers– Explain Beard’s theory about Framers– Explain which you think is correct– Provide evidence for your claim

More essay topics

• McCulloch/Lopez– Id main issues in McCulloch– Id main issues in Lopez– Explain decision in McCulloch– Explain decision in Lopez– Explain how our interpretation of federalism has

changed over time

More essay topics

• Constitutional Checks– Source of checks/balances– 2 ways congress check pres– 3 ways Pres checks congress– One way that the Court checks– Explain which is most powerful check

More essay topics

• Jefferson and the D of I– 3 ideas from Locke– 3 purposes for writing D of I– 3 complaints against king– Explain how complaints were addressed in

Constitution– Explain why the framers took a risk to write it

More essay topics

• Federalism– Categorical grants– NCLB– People w/ Disabilities Act– Court Decisions– Welfare Reform– Block Grants