2Constructing a Government:The Founding and the Constitution

The First FoundingThere was a variety of interests in colonial AmericaThey included:New England merchantsSouthern plantersRoyalistsShopkeepers, artisans, and laborersSmall farmers

British Taxes and Colonial InterestsBeginning in the 1750s, the British Crown began imposing a series of modest taxes on the colonists in part to pay some of the costs of imperial defenseThe particular types of taxes levies on stamps and commercial goods like sugar and molasses caused several of the colonial interests to begin to organize against the Crown

Clicker Question:Rationality PrincipleWhich of the following interests in colonial society was mostly likely to organize in opposition to British taxation policies?

New England merchantsSouthern plantersRoyalistsShopkeepers, artisans, and laborersSmall farmers

Political Strife and the Radicalizing of the ColonistsA series of provocative acts and counter-acts radicalized colonists and led to the Declaration of IndependenceBoston Tea Party (1773)First Continental Congress (1774)Lexington and Concord (1775)Second Continental Congress (1776)This is the Collective Action Principle in action

The Declaration of IndependenceAll men are created equalGovernments derive their legitimacy from the consent of the governedDeclares that when a government no longer serves the needs of the people, the people have a right to revoltDoes not create a government

The Articles of ConfederationThe first American ConstitutionAmerica is really 13 sovereign states with a weak central governmentNo standing armyWeak executiveNo ability to tax and spendProblems of international standingShayss Rebellion

Constitutional Convention (1787): Key IssuesKey Issues:Revise or scrap the Articles of ConfederationNational Power vs. State PowerHow much democracy?SlaverySome answers:The Great CompromiseThe Three-Fifths Compromise

The ConstitutionThe Convention produced a Constitution with seven articlesFirst three articles outline the structure and power of the legislative, executive, and judicial branchesOther articles relate to national power, the amendment process, and the ratification processIt is a brief document

Article I: Legislative BranchBicameralism Division of a legislative assembly into two chambers or housesExpressed Powers of GovernmentNecessary and Proper Clause Also referred to as the elastic clause

Article II: Executive BranchProvides for an independent, stronger, and more energetic executive than in the Articles of ConfederationPresident is Commander in Chief, chief executive, and chief diplomatOther powers include the nomination of executive and judicial officials

Article III: Judicial BranchProvides for a Supreme Court and other federal courts Congress can establishJustices and judges have lifetime terms and are nominated by the president and confirmed by the SenateDoes not explicitly provide for judicial review the power of the courts to declare actions of the legislative and executive branches invalid or unconstitutional

Articles I, II, and III:The Separation of Powers

Articles IV and VI:National Unity and PowerArticle IV provides reciprocity among the states through the full faith and credit clause and the privileges and immunities clauseArticle VI promotes national power through the national supremacy clause

Article V: Amending the ConstitutionSets forth the procedures for amending the Constitution

Article VII: RatificationCalls for ratifying conventions in each of the 13 statesThe Constitution is deemed ratified when 9 of the 13 states vote to ratify

The Fight for Ratification:Federalists vs. AntifederalistsFederalists favored ratification and a stronger national governmentAntifederalists opposed ratification but disagreed amongst themselves about what the alternative should beAt issue:Nature of representationDanger posed by tyranny of the majorityScope and location of governmental power

The Fight for Ratification

Discussion/Clicker QuestionWhich contemporary groups ideas do the Antifederalists ideas resemble?

Occupy Wall StreetTea PartyGreen PartyLibertarian Party

The Fight for Ratification:The Bill of RightsThe Bill of Rights is one key result of the fight for ratification

Beyond the Constitution:Limiting Governmental PowerThe Federalists and Antifederalists agreed that governmental power had to be checked and they also agreed that mere parchment barriers would not be enoughIn Federalist #10, James Madison outlines the strongest argument from the Federalist camp for why popular government will succeed in the new United States

Beyond the Constitution:Limiting Governmental PowerIn Federalist #10, James Madison argues:The key problem of democracy is instability and factionalismFactions are sown into the nature of manSo we must control the effects of factionRepresentation and filtering of public opinionExtend the Sphere Take in a greater variety of interestsThe American solution is that well agree to disagree!

Amending the ConstitutionThere have been just 17 amendments to the Constitution since 1791Two of these cancel each other out (Prohibition)The remaining 15 amendments can be broken down into 3 categories

Expansion of the Electorate

Changing Elections

Expanding and Limiting the Power of Government

Clicker Question:Lincoln, King, & Rule of LawShould a law be followed if it is immoral or unjust?

Yes No

Lincoln, The Perpetuation of Our Political InstitutionsLincoln argues for the rule of lawThe perpetuation of our political institutions requires that citizens must not tolerate any violation of the law no matter how smallWe should work to change unjust laws but, while they are in force, they must be observed

King, Letter From a Birmingham JailKing argues for civil disobedience in the face of unjust or immoral lawsIndividuals have a moral duty to break an unjust lawIndividuals must accept the consequences openly and lovingly in order to arouse the conscience of the community

***Answer: A and B

It is useful to ask students how this question is an example of the Rationality Principle.*Discussion:There was nothing automatic about the organization of disparate colonial interests. Collective action is difficult. The difficulty mounts as the number of interests increases. It was particularly difficult in the 1770s when communication and travel were so limited.*Discussion:It is useful to have students read the Declaration of Independence and to put the document up on the screen in class. You can find the document online at http://memory.loc.gov/cgi-bin/query/r?ammem/bdsdcc:@field(DOCID+@lit(bdsdcc02101)). Students frequently think of the Declaration of Independence as being the same in spirit as the Constitution. So it is worth pointing out some key differences: the Declaration emphasizes equality and democracy, it authorizes revolution, and it does not create a new government.

*Discussion:In getting students to think about the weaknesses of the Articles of Confederation as an institution, it is useful to explain to them the ways in which the contemporary United Nations resembles a similar kind of governing arrangement.*Discussion:The first question facing delegates to the Constitutional Convention was whether to suggest revisions to the Articles of Confederation or to scrap the Articles and start over. Very quickly, the delegates agreed to develop a new framework and focused in on key questions, including the amount of power the new national government would have, how democratic the new system would be, and what to do about slavery.**Discussion:Article I is by far the longest of the seven articles of the Constitution, making up more than half the words in the entire original document. Its length and placement as the first article of the Constitution are significant as a sign that most of the delegates to the Constitutional Convention believed it was the most powerful of the three branches. Indeed, James Madison says this explicitly in Federalist #51. Article I, Section 8 lists most of the key expressed powers of the national government and the necessary and proper or elastic clause even leaves room for the expansion of national power over time.*Discussion:Article II provides for an independent executive with a wider array of powers than under the Articles of Confederation. Article II begins by stating that the executive power shall be vested in a president. This vague grant of power has come to mean a great deal over time. The presidents expressed powers include his title of Commander in Chief of the armed forces and his power to nominate executive and judicial officials. The presidents most important legislative power, the veto, is actually granted to the president in Article I, Section 7.*Discussion:Article III provides for one Supreme Court and other courts Congress can establish. Federal judges are nominated by the president and confirmed by the Senate and serve during good behavior, which means they effectively have lifetime terms. Article III does not explicitly provide for judicial review.****Discussion:It is useful to engage the students in a discussion of the politics of ratification. One way to do this is to explain to them that the Articles of Confederation required all 13 states to agree to any changes to the Articles but here, the Constitution is deemed ratified if 9 of the 13 states ratifying conventions vote to ratify. This is one hint that the Constitution represented a loss of power to the state governments. Those at the Constitutional Convention worried that state legislators might not agree to the new, more powerful national government in the Constitution so they created the ratifying conventions as an ad hoc institutional solution. They also set 9 states as the number needed to ratify rather than a consensus. Ultimately, all 13 states did ratify the new Constitution but it took several years. The unity of the framing era is frequently over-stated and this discussion is one way to relate the contentious politics of the time to students.***Answer: All?The Federalists won the battle over ratification but it may rightly be said that the Antifederalist line of thought remains a part of the American dialogue to this day. The echoes of the Antifederalists call for local power, greater direct democracy, freedom of the individual, and mistrust of elite-driven, centralized government can be seen at least to some significant degree in each of the movements/parties listed above. Many students may not be familiar with some or all of these groups but it is a worthwhile exercise to have students research one or more of these groups and their ideas and compare them to the Antifederalists.*Discussion:Antifederalists also won a major substantive concession in the fight for ratification. Federalists were forced to agree to adopt a series of amendments to the Constitution immediately after ratification that would spell out protections for individuals and states from Congress, the executive branch, the courts, and the national government generally. These 10 amendments were ratified by 1791 and are collectively known as the Bill of Rights.*Discussion/Assignment:Having students read Federalist #10 and write about Madisons ideas is useful for a variety of reasons. One way to do this is to ask students to outline why, according to his arguments there, Madison believes popular government will last in the United States as opposed to all other democracies prior to this time. It is interesting to note that Madison saw the size and diversity of interests in the United States (extra-constitutional variables) as one of the great protections against the tyranny of the majority.

******Discussion/Assignment:The next few slides can be used to get students to think about the role of the Constitution and the law in promoting justice. Have students read Abraham Lincolns The Perpetuation of Our Political Institutions and Martin Luther King, Jr.s Letter From a Birmingham Jail. These documents can be found online at the URLs below:

http://teachingamericanhistory.org/library/index.asp?document=157http://mlk-kpp01.stanford.edu/index.php/resources/article/annotated_letter_from_birmingham/

Then ask students to write (or discuss in class) whether they think Lincoln is right about whether immoral or unjust laws must be religiously observed.***Under the Articles of Confederation, there was a unicameral Congress in which each state delegation received a single vote regardless of state population. So Virginia, with roughly 700,000 people, had the same share of votes as Rhode Island, with a population closer to 70,000. Among the issues considered by the framers at the Constitutional Convention, one of the most contentious involved how representation in the Congress would work under the new Constitution.

The larger states supported the Virginia Planbecause under this plan at least one of the chambers of Congress would be elected with representation proportional to population, giving the more populous states more of a voice in the national government. Given that the smaller, less populous states were poised to lose representation if votes in Congress were based on population, delegates from those states proposed the New Jersey Plan, which called for the creation of a unicameral legislature with one vote per state. Moreover, many of the delegates from the smaller states threatened to leave the Convention if the Virginia Plan were ratified. In an attempt to prevent the smaller states from departing, Roger Sherman proposed the Connecticut Compromise. This plan called for a bicameral legislature, with representation based on population in the lower house and equal representation of states in the upper house. The plan ultimately passed by a 54 vote.

*Under the Articles of Confederation, there was a unicameral Congress in which each state delegation received a single vote regardless of state population. So Virginia, with roughly 700,000 people, had the same share of votes as Rhode Island, with a population closer to 70,000. Among the issues considered by the framers at the Constitutional Convention, one of the most contentious involved how representation in the Congress would work under the new Constitution.

The larger states supported the Virginia Planbecause under this plan at least one of the chambers of Congress would be elected with representation proportional to population, giving the more populous states more of a voice in the national government. Given that the smaller, less populous states were poised to lose representation if votes in Congress were based on population, delegates from those states proposed the New Jersey Plan, which called for the creation of a unicameral legislature with one vote per state. Moreover, many of the delegates from the smaller states threatened to leave the Convention if the Virginia Plan were ratified. In an attempt to prevent the smaller states from departing, Roger Sherman proposed the Connecticut Compromise. This plan called for a bicameral legislature, with representation based on population in the lower house and equal representation of states in the upper house. The plan ultimately passed by a 54 vote.

Marylands delegates were split equally and thus did not vote on the Virginia Plan. Delegates from New Hampshire never attended at the same time as those from New York, hence their lack of participation. Rhode Island did not send any delegates to attend the Convention.

Population data are based on the 1790 census and therefore are only approximate with respect to populations in 1787.

SOURCES: Keith L. Dougherty and Jac C. Heckelman, A Pivotal Voter from a Pivotal State: Roger Sherman at the Constitutional Convention, American Political Science Review 100 (May 2006): 297302. Clinton L. Rossiter, 1787: The Grand Convention (New York: Macmillan Publishing Company, 1996).

*If we consider the number of representatives in Congress that each state would receive under the various plans, it becomes clear why individual states voted the way they did. Under the Articles and the proposed New Jersey Plan, even the smallest states had 1 out of 13 votes in the Congress.

Under a population-based system like the Virginia Plan, the smaller states would lose voting power in the Congress. For example, in a population-based system with one representative per 30,000 people, Delaware would only have 1 out of 65 votes significantly less voting power than the 1 out of 13 these states enjoyed under the Articles and other arrangements that would give each state equal representation in Congress.

Note that the framers calculated the number of representatives per state using population estimates. The first census was not taken until 1790.

SOURCES: Keith L. Dougherty and Jac C. Heckelman, A Pivotal Voter from a Pivotal State: Roger Sherman at the Constitutional Convention, American Political Science Review 100 (May 2006): 297302. Clinton L. Rossiter, 1787: The Grand Convention (New York: Macmillan Publishing Company, 1996).

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