1 1787: constitution by richard jensen & d’ann campbell for tah 2008

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  • 1787: Constitutionby Richard Jensen & DAnn CampbellFor TAH 2008

  • 1783-1800 Constitutional Foundationsby Richard Jensen For TAH 2008

  • Summary: USA gets Strong National GovernmentNationalist sentiment led by veteransWashington; Alexander Hamilton (NY)Long term vision of great nationPhiladelphia: secret convention 1787Terms of Office: 2-4-6 yearsSupreme Court; lifetime jobRatification DebatesFederalist papersAntifederalists & Bill of RightsYES: need strong gov'tWashingtons leadershipBill Rights promised soon

  • Critical Era of 1780sTheory 1: Confederacy too weakTheory 2: its OKEvidence:World at peace and no direct threatsUSA very weak government; cannot pay its bills because cannot collect taxes

  • Problems with ConfederationVery weak central governmentNo money, no taxes, no presidentDangerous world needs strong governmentNo wars in 1780s but major wars in Europe in 1760s and 1770s, and again in 1790s13 separate states feud with each otherSpirit of nationalism requires strong countrySolution: write a new Constitution

  • Main Idea = RepublicanismGet rid of aristocracyEqual legal rightsPolitical power (vote) limited toIndependentVirtuousStrong sense of civic dutyHatred of corruption

  • The People RuleAristocracy: aristocrats own and rule the countryKingdom: King owns and rules (and controls aristocrats); France; absolute monarchyBritain: Constitutional MonarcyRepublic: the people are sovereign, and control govt via elections

  • What is Corruption?Use of government power for private purposeFor examplecash in your pocketHelping your family (nepotism)Taking bribesNo concern for public interestGOAL: minimize corruption

  • "Serving Two Masters. The sort of thing that will cease when Senator Beck's Bill becomes a law." Keppler in Puck 1880. .

    Railroad Corruption of Congress in Gilded Age

  • Power itself corruptsSolution: divide the power so it cannot gang up on the individual citizenStates and national government split powersRights of individuals protected by courtsCongress and President split the power and watch each other all the time

  • Founding Fathers: young men

  • Philadelphia 1787Philadelphia Convention: selected by states; secretBasic goal" perfect machine"Need Strong national gov'tSeek balance among dangerous forcesLeadership: Hamilton, Madison, Wilson

  • Issues 1787Fear of national power; solution: counterbalancesSmall states vs LargeSectionalism, North vs South vs WestNo foreign dangers at the moment; inward-lookingSlavery in South

  • LeadersWashingtonJames Madison

  • Assumptionsrepublicanism: no aristocracy; equal citizens = basic values of new system; every part must support this goalseparation of powers at national levelexecutive/legislative/judicialchecks and balances: each watch the otherfederalism = balance between states & nationstates to remain sovereign in own sphereState Power; citizenship; courts; taxes; cities;control over election procedurespopular sovereignty: people ultimately rule

  • Slavery IssueSouthern states refused to consider abolition of slaverySlaves could not vote BUT they would be counted in populationCompromise: only 60% of slaves countedFugitive slaves to be returned to mastersInternational slave trade could be abolished20 years later (it was, in 1807)

  • Virginia PlanVirginia was the most influential state and had the largest populationProposed very powerful HouseWeak President (chosen by House)weak Senate (also chosen by House)

  • New Jersey PlanSmall states would have little power under Virginia Plan so they came up with plan of their ownOne state one vote, giving small states an advantageWeak national government

  • Great CompromiseTake best part of Virginia PlanStrong HouseTake best part of New Jersey PlanStrong SenateAdd strong presidentEveryone agreed

  • Separation of PowersThree powers:Legislative (Congress) makes lawsExecutive: (President) enforces law, commands armyJudiciary: vague in 1787 because world has never seen a strong judiciaryIdeas based on Montesquieu and his analysis of English way of government

  • Congress = peopleGreat Compromise: Senate for States, House for Populationslaved property counts, not other kindpowers; rules; officers; journalsCongressmen are independent, not tools of state governmentHouse: represent population; power over taxes & spendingapportionment by enumerationSenate: too aristocratic? small states demand it;advise and consent to appointments by 51%; Treaties by 2/3

  • Office of PresidentPresident: strong elected executivenot a king, or god; not hereditarylimited powers, balanced by Congressdebate on need, danger of office;Not a king (no inherited offices)Not a puppet of legislature

  • Selecting a Republican PresidentPresident: strong elected executivenot a king, or god; not hereditarylimited powers, balanced by Congressdebate on need, danger of office;reelection or term limits? 4 years re-electableWashington tradition: only two terms (broken by FDR, 1940)small vs large states; electoral college helps bothselection by parties: not expectedtop vote getter = president, 2nd = VPno majority? Then House picks from top 3only used in 1800 and 1824crisis of 1800 requires clarification

  • Presidential Powerexecutive departments not created but allowed for [Treasury, State, War started in 1789]domestic affairs: limited explicit powersforeign affairs; ambassadors, treatiesannex new territory? not explicitappointments to all offices Senate confirmation as checkImpeachment process (by House & Senate)pardons: absolute power

  • War PowersPresident as commander in chiefno independent army aristocracyshared power with CongressCongress declares warFunds the military, makes rulesState militia allowed (but not state armies)

  • Missing Topics Not discussed at ConCon1. not decided: national debt, national capital location2. not expected: political parties; considered divisive3. not expected: national media & focus on national affairs & (after 1900) on the President as persona4. not expected: federal power expands at expense of state power5. not expected: growth of Supreme Court power (esp 20c)6. not developed: rights of minorities [Calhoun, 1830s]8. Not mentioned: Executive orders by president

  • Ratification by all 13 states1. Prestige of Washington, Franklin & other signers decisive2. anti-federalists: no need for central power; demand bill of rights; fear of President; fear aristocratic Senatelocalistic outlook & values vs cosmopolitan federalists3. Federalists; Hamilton, Madison & Jay "Federalist PapersMadison: 10th Federalist & pluralism--the bigger the territory, the more different interests there are, and the less likely to have one dominant interest4. geography: coast = yes, inland = no5. Charles Beard: financial self interest put it through

  • Bill of RightsPromised during ratification10 Amendments adopted 1789 (in effect 1791); Madison as authorProtect individual against Nation4-5-6-7-8th Amendment jury trials, self-incrimination; punishment9th-10: reserved to states and people

  • First AmendmentFreedom of speechFreedom of AssemblyFreedom of PressFreedom of religionFree expressionSeparation

  • 1st Amendment: Speech, religion, assemblyCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  • 2nd Amendment: gunsA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  • Second Amendment: guns2008 Supreme CourtIndividual rightNRALocal gun control

  • 4th Amendment: privacyThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Privacy leads to Roe v Wade = abortion right

  • 5th Amendment: propertyNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Kelo case 2005 on eminent domain

  • Fifth:Right Against Self-Incrimination

  • Later DevelopmentsMarshall: Supreme Court makes final decisionslater amendments: 13 no slavery; 15- Black vote14 equal protectionNational rights extended to cover the states (20c)Right to Privacy (1965)Roe v Wade (abortion rights)

  • Supreme Court defines the rulesConstitution is supremeSupreme Court defines the Constitution

  • OriginalismDebate today: should we depend more onOriginal understanding in 1787Needs of America today?Justices Scalia and ThomasWhy: to have definite, fixed answers by using the answers of 1787NOT: history is contested ground. Founding Fathers usually argued a great deal and rarely were fully agreed.

  • Special PrivilegeDouble meaning of privilegeSpecial advantages given to ascribed statusthat