Constitution1787

Dr CampbellCulver Stockton

College

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American legal culture

Role of lawyers

• Litigation as key to self government– Legal rights of Englishmen– Very active in colonial America

• Local courts, juries• Provincial & state government

Becoming a lawyer

• Bar association• Apprenticeship• Inns of Court (London)• William and Mary College (Virginia)• Litchfield Law School (Connecticut 1784)• Harvard 1817 ; Justice Joseph Story;

Knowing the law

• Blackstone’s textbook• Reports of Court decisions• Apprenticehip process• Law school– Harvard case study method; Professor Christopher

Columbus Langdell, 1870s

• contracts, property, torts, criminal law, and civil procedure

Court procedure

• Judge• Jury• Lawyers for Plaintiff• Lawyers for Defendant• Decision– enforcement

Appeals• Federal district court

– Lifetime (resign? Impeach?)– one in SC; 15 judges– Also Federal Attorney; Marshalls

• Federal Court of Appeals (n=13)• SC = 4th Circuit (based in Richmond)• Also called “Circuit courts”• 179 judges; paid $184,000

• Supreme Court: 9 members– What can be appealed– 10,000 cases a year to Supreme Court– 100 accepted (1%)

• Lengthy and $$$$• Decisions of Supreme Court

– Final?

Supreme Court cases

• Briefs by lawyers• Accept or reject case• Oral arguments• Judges decide– Majority opinion = law– Minority opinion = not law

• Announced in Court

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Summary: USA gets Strong National Government

• Nationalist sentiment led by veterans– Washington; Alexander Hamilton (NY)– Long term vision of great nation

• Philadelphia: secret convention 1787– Terms of Office: 2-4-6 years– Supreme Court; lifetime job

• Ratification Debates– Federalist papers– Antifederalists & Bill of Rights

• YES: need strong gov't– Washington’s leadership– Bill Rights promised soon

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Critical Era of 1780s

• Theory 1: Confederacy too weak• Theory 2: it’s OK• Evidence:– World at peace and no direct threats– USA very weak government; cannot pay its bills

because cannot collect taxes

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Problems with Confederation

• Very weak central government– No money, no taxes, no president

• Dangerous world needs strong government– No wars in 1780s– but major wars in Europe in

1760s and 1770s, and again in 1790s• 13 separate states feud with each other• Spirit of nationalism requires strong country• Solution: write a new Constitution

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Main Idea = Republicanism

• Get rid of aristocracy• Equal legal rights• Political power (vote) limited to– Independent– Virtuous

• Strong sense of civic duty• Hatred of corruption

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The People Rule

• Aristocracy: aristocrats own and rule the country

• Kingdom: King owns and rules (and controls aristocrats); – France; “absolute monarchy”– Britain: Constitutional Monarcy

• Republic: the people are sovereign, and control gov’t via elections

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What is Corruption?

• Use of government power for private purpose– For example—cash in your pocket– Helping your family (nepotism)– Taking bribes– No concern for public interest

• GOAL: minimize corruption

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Railroad Corruption of Congress in Gilded Age 1880

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Power itself corrupts

• Solution: divide the power so it cannot gang up on the individual citizen

• States and national government split powers• Rights of individuals protected by courts• Congress and President split the power and

watch each other all the time

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Philadelphia 1787• Philadelphia Convention: selected by states; secret• Basic goal" perfect machine"• Need Strong national gov't• Seek balance among dangerous forces• Leadership: Hamilton, Madison, Wilson

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Issues 1787• Fear of national power; solution: counterbalances• Small states vs Large• Sectionalism, North vs South vs West• No foreign dangers at the moment; inward-looking• Slavery in South

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Leaders

• Washington• James Madison

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Assumptions

• republicanism: no aristocracy; equal citizens = basic values of new system; every part must support this goal

• separation of powers at national level– executive/legislative/judicial– checks and balances: each watch the other

• federalism = balance between states & nation– states to remain sovereign in own sphere– State Power; citizenship; courts; taxes; cities;– control over election procedures

• popular sovereignty: people ultimately rule

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Slavery Issue

• Southern states refused to consider abolition of slavery

• Slaves could not vote BUT they would be counted in population– Compromise: only 60% of slaves counted

• Fugitive slaves to be returned to masters• International slave trade could be abolished20

years later (it was, in 1807)

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Virginia Plan

• Virginia was the most influential state and had the largest population

• Proposed very powerful House• Weak President (chosen by House)– weak Senate (also chosen by House)

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New Jersey Plan

• Small states would have little power under Virginia Plan so they came up with plan of their own

• One state one vote, giving small states an advantage

• Weak national government

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• Take best part of Virginia Plan– Strong House

• Take best part of New Jersey Plan– Strong Senate

• Add strong president• Everyone agreed

Great Compromise

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Separation of Powers

• Three powers:– Legislative (Congress) makes laws– Executive: (President) enforces law, commands

army– Judiciary: vague in 1787 because world has never

seen a strong judiciary

• Ideas based on Montesquieu and his analysis of English way of government

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Congress = people• Great Compromise: Senate for States, House for Population

– slaved property counts, not other kind• powers; rules; officers; journals

– Congressmen are independent, not tools of state government• House: represent population; power over taxes & spending

– apportionment by enumeration• Senate: too aristocratic? small states demand it;

– advise and consent to appointments by 51%; Treaties by 2/3

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Office of President

• President: strong elected executive– not a king, or god; not hereditary– limited powers, balanced by Congress– debate on need, danger of office;

• Not a king (no inherited offices)• Not a puppet of legislature

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Selecting a Republican President• President: strong elected executive

– not a king, or god; not hereditary– limited powers, balanced by Congress– debate on need, danger of office;

• reelection or term limits? 4 years re-electable– Washington tradition: only two terms (broken by FDR, 1940)

• small vs large states; electoral college helps both• selection by parties: not expected

– top vote getter = president, 2nd = VP– no majority? Then House picks from top 3

• only used in 1800 and 1824– crisis of 1800 requires clarification

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Presidential Power• executive departments not created but allowed for [Treasury,

State, War started in 1789]• domestic affairs: limited explicit powers• foreign affairs; ambassadors, treaties

– annex new territory? not explicit• appointments to all offices

– Senate confirmation as check• Impeachment process (by House & Senate)

– pardons: absolute power

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Missing Topics Not discussed at ConCon

• 1. not decided: national debt, national capital location• 2. not expected: political parties; considered divisive• 3. not expected: national media & focus on national affairs &

(after 1900) on the President as persona• 4. not expected: federal power expands at expense of state

power• 5. not expected: growth of Supreme Court power (esp 20c)• 6. not developed: rights of minorities [Calhoun, 1830s]• 8. Not mentioned: Executive orders by president

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Ratification by all 13 states

• 1. Prestige of Washington, Franklin & other signers decisive• 2. anti-federalists: no need for central power; demand bill of

rights; fear of President; fear aristocratic Senate– localistic outlook & values vs cosmopolitan federalists

• 3. Federalists; Hamilton, Madison & Jay "Federalist Papers”– Madison: 10th Federalist & pluralism--the bigger the territory, the

more different interests there are, and the less likely to have one dominant interest

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Ratification by all 13 states

• 1. Prestige of Washington, Franklin & other signers decisive• 2. anti-federalists: no need for central power; demand bill of

rights; fear of President; fear aristocratic Senate– localistic outlook & values vs cosmopolitan federalists

• 3. Federalists; Hamilton, Madison & Jay "Federalist Papers”– Madison: 10th Federalist & pluralism--the bigger the territory, the

more different interests there are, and the less likely to have one dominant interest

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Bill of Rights

• Promised during ratification• 10 Amendments adopted 1789

(in effect 1791); Madison as author

• Protect individual against Nation

• 4-5-6-7-8th Amendment jury trials, self-incrimination; punishment

• 9th-10: reserved to states and people

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First Amendment

• Freedom of speech• Freedom of Assembly• Freedom of Press• Freedom of religion– Free expression– Separation

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1st Amendment: Speech, religion, assembly

• Congress 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.

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2nd Amendment: guns

• A 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.

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Second Amendment: guns

• 2008 Supreme Court• Individual right• NRA• Local gun control

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4th Amendment: privacy

• The 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

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5th Amendment: property• No 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

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Fifth:Right Against Self-Incrimination

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Later Developments

• Marshall: Supreme Court makes final decisions

• later amendments: – 13 no slavery; 15- Black vote– 14 equal protection

• National rights extended to cover the states (20c)

• Right to Privacy (1965)– Roe v Wade (abortion rights)

Marbury v Madison (1803)

• Court can declare a law passed by Congress is unconstitutional

• Supreme Court has final word on what the Constitution says

• Result is a very powerful Supreme Court (like no other country has)

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Dartmouth College Case 1819

• Daniel Webster for Dartmouth

• No state is allowed to undo a legal contract

• Sanctity of contracts

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McCulloch v Maryland (1819)

• Constitution gives Federal Government “implied powers” (Hamilton’s position; opposed by Jefferson)

• When state and federal powers conflict, go with federal law

• Maryland cannot tax federal bank– “The Power to tax is the power to destroy” –John

Marshall

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Gibbons v Ogden (1824)

• Congress has power to regulate interstate commerce

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Why important today

• Supreme Court interprets the Constitution• Many judges, lawyers, law professors study it

very closely• Debate today: should we depend more on– Original understanding in 1787– Needs of America today?

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Best presidents

National Archives

• Resources for teachers– http://www.archives.gov/education/

• DocsTeach - An online teaching tool – http://docsteach.org/

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Online Resources

• Bill of Rights http://memory.loc.gov/learn/lessons/constitu/const-l2.html

• Constitution– Lesson plans & primary documents

• More Links– Political links by Jensen

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Online book

• The Fathers of the Constitution by Farrand (1921)

» Short, accurate, readable