chapter 2 the constitution. copyright © 2011 cengage the challenge how to create a government which...

Chapter 2 The

Constitution

Copyright © 2011 Cengage

The Challenge

LIBERTY vs POWERHow to create a government which protects individual liberty yet has enough power to keep order.


The Challenge

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

James Madison, Federalist #5 1


The Problem of Liberty

The Colonial Mind Natural law: People have the unalienable

rights of life, liberty and property (“pursuit of happiness”).

Men will seek power because they are ambitious, greedy and easily corrupted.

Declaration of Independence cited King George III for violating the unalienable rights of the colonists.



The Real Revolution

The “real” revolution was the radical change in belief about what made authority legitimate and liberties secure.

Government exists by consent of the governed, not by royal prerogative.

Political power exercised by direct grant of power in a written constitution.



The Real Revolution

A legitimate government must be one: In which authority is derived from the

consent of the governed. That protects natural rights


The Problem of LibertyArticles of Confederation

“League of Friendship,” not a national Union. Based on great concern about:

• Power of government• Preservation of individual liberty• State sovereignty and independence

Many leaders of the Revolution were concerned about the weakness of government under the Articles.


The Problem of LibertyWeaknesses of the Confederation

1. Could not levy taxes or regulate commerce.2. Sovereignty, independence retained by states.3. One vote in Congress for each state.4. Nine of thirteen votes in Congress required for any measure.5. Delegates to Congress chosen and paid by state legislatures.6. Little money coined by Congress.7. Army small and dependent on independent state militias.8. Territorial disputes between states led to open hostilities.9. No national judicial system.10. All thirteen states’ consent necessary for any amendments.


The Constitutional Convention

Mural by Barry Faulkner

Courtesy of the National Archives and Records Administration, Washington, D.C.

• The first attempt to correct deficiencies of the Articles – the Annapolis Convention – was not well-attended.

• A second meeting was set for May, 1787 in Philadelphia.

• The convention was only authorized to make modifications to the Articles, but ended up designing a new government.


The Lessons of Experience: State Constitutions

a) Pennsylvania: radically democratic, but trampled minority rights—government was too strong

b) Massachusetts: less democratic: directly elected governor, but electors and officials had to own property; clear separation of powers



The Lessons of Experience: Shays’ Rebellion


Brought fear that states were about to collapse from internal conflicts.


The Constitution and Democracy The Framers did not intend to create

a direct democracy

Physical impossibility in a vast country.

Founders also mistrusted popular passions and were concerned about security of minority rights.

Intended instead to create a republic, a government by representation


The Constitution and DemocracyPopular rule was limited

1. State legislators to elect senators2. Electors to choose president3. Two kinds of majorities: voters (for example, the

House of Representatives) and states (for example, the Senate)

4. Judicial review another limitation on power, though one not necessarily intended by Founders

5. Amendment process


The Constitution and DemocracyKey principles

1. Separation of powers: among branches of the national government

2. Federalism: power divided between national and state governments


The Constitution and DemocracyThree categories of powers

Enumerated powers: given exclusively to the national government; include power to print money, declare war, make treaties, conduct foreign affairs

Reserved powers: given exclusively to the states; include power to issue licenses and to regulate commerce wholly within a state


The Constitution and DemocracyThree categories of powers

Concurrent powers: shared by both national and state governments; include collecting taxes, building roads, borrowing money, establishing courts


The Challenge

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

James Madison, Federalist #5 1


The Challenge: Virginia Plan Strong national government organized into three

branches Bicameral legislature Executive and members of the national judiciary to

be chosen by legislature “Council of revision” (executive and some judiciary

branch members) with veto power; legislature could override the veto

Two key features of the plan: a)National legislature with supreme powersb) One legislative house elected directly by the

people


The Challenge: New Jersey Plan Submitted as alternative to Virginia Plan Sought to amend rather than replace the Articles

of Confederation Protected small states’ interests while enhancing

power of national government. Generated from a fear that legislative

representation would be based on population, allowing the more populous states always to outvote the less populous states

Unicameral legislature Proposed one vote per state, so Congress would

be the creature of the state governments

Virginia vs. New Jersey plans May 29: Virginia plan proposed by Madison.

June 15: New Jersey plan proposed by Patterson.

July 2: Convention deadlocked on issue of representation. Small states discontented; some threatened to withdraw their delegations.

July 5: Committee of one delegate from each state submitted report to the convention.

July 16 – the Great Compromise passes.


The Challenge: The Great Compromise

House of Representatives based on population and directly elected by people

Senate composed of two members per state and elected by state legislatures

Reconciled interests of large and small states—the former would dominate the House of Representatives, the latter would dominate the Senate

The Ratification DebateFederalists

“nationalists”

• Supported Constitution• Leaders: Madison,

Washington

Antifederalists”states’ righters”

• Opposed Constitution• Leaders: Patrick Henry,

Samuel Adams

The Antifederalist View

• State conventions were most concerned with liberty, not democracy.

• Antifeds believed liberty could only be secured in a small republic. Leaders had to be close to those they governed.

• A strong national government would be distant from the people and would usurp the power of the states.

• Antifeds preferred a loose confederation among the states.

Patrick Henry: Leader of the Anti-Federalists

HE PREDICTED THAT THE CONSTITUTION WOULD LEAD TO:

• heavy federal taxes

• a standing army

• difficulty amending the Constitution

• claims by Congress that the Constitution grants implied legislative powers

• the eventual liberation of theslaves

“We shall have a king: the army will salute him monarch…What will then become of you and your rights? Will not absolute despotism ensue?”

The Antifederalist View: Bill of Rights Needed

• Antifeds felt that further limitations should be placed on a national government.

• Some insisted that a Bill of Rights be added prior to ratification.

• Framers felt that rights were adequately protected by the original Constitution.

Liberties protected by original Constitution

• Right of habeas corpus• No bill of attainder• No ex post facto law• Trial by jury in criminal cases• Citizens of each state guaranteed the

privileges and immunities of citizens of every other state

• No religious tests for federal office• No state could pass a law impairing the

obligation of contracts

Habeus corpus – the right to be brought before a judge to decide whether imprisonment is legal.

Bill of attainder – criminal conviction w/o trial by vote of a legislature.

Ex post facto law – law making a past action illegal and punishing a person for it.

Ratification

Ratification of the Federal Constitution by State Conventions, 1787-1790,

Date State Vote (Y-N)

Dec. 7, 1787 Delaware 30-0

Dec. 12, 1787 Pennsylvania 46-23

Dec. 18, 1787 New Jersey 38-0

Jan. 2, 1788 Georgia 26-0

Jan. 9, 1788 Connecticut 128-40

Feb. 6, 1788 Massachusetts 187-168

March 24, 1788 Rhode Island(popular referendum)

234 - 2,708

April 28, 1788 Maryland 63-11

May 23, 1788 South Carolina 149-73

June 21, 1788 New Hampshire 57-47

June 25, 1788 Virginia 89-79

July 26, 1788 New York 30-27

Nov. 21, 1789 North Carolina 194-77

May 29, 1790 Rhode Island 34-32

• Election of delegates began in March, 1788.

• Convention began June 2, vote to ratify taken on June 25.

• New Hampshire became ninth state to ratify on June 21, but Virginia delegates were unaware (no Twitter).

• Virginia delegates felt that their decision would make or break the Constitution.

• Leading Federalists: Madison, Washington

• Leading Anti-feds: Henry, Mason

Ratification in VirginiaBriceland article

Legitimacy: Source of power should be states, not “the people” (nationally).

New Constitution created a national, not federal government. (Henry: “This government is not a Virginian, but an American government.”)

Constitution was a threat to individual liberty.

Creation of government was illegal (Philly convention did not have authority to write new Constitution.)

Ratification in VirginiaAntifederalist complaints

Briceland article

• Madison believed that Antifederalists would be appeased, and ratification secured, by the offer of a Bill of Rights.

• “Previous amendments” or “subsequent amendments?”

• Delegates voted down twenty amendments offered as a condition for ratification. (Y=80, N=88)

• Voted 89-79 for ratification with recommendation for “subsequent amendments.”

• Madison introduced twelve amendments in the First Congress. (House quorum achieved April 1, 1791; amendments introduced June 8; sent to states September 25; ratified December 15)

Ratification in Virginia“The Deal”

Briceland article


The Motives of the Framers:Economic Interests

• In 1913, Charles Beard published An Economic Interpretation of the Constitution.

• His thesis: Some of the Framers expected to benefit economically from the outcome of the Constitutional Convention.


The Motives of the Framers:Economic Interests

Beard’s theory has not stood up to scrutiny.

• Economic interests of Framers varied widely.

• Economic interests did not dominate debate at the convention.

• Historical studies in the 1950s found no division along class lines.

• Data studied in the 1980s suggests that state economic interests outweighed the personal consideration of the Framers.

chapter 2 the constitution. copyright © 2011 cengage the challenge how to create a government which...

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