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Constitution

POSC 121

Braunwarth

Nationalism

  • How did we come to be an independent nation?
  • Began as a struggle between order and freedom
  • England protects the colonies in the Seven Years’War with France ending in 1763
  • To pay, England passes Stamp Act and Sugar Act
  • Resistance to “taxation without representation” was fanned by “Patriots” who wanted independence
  • Through their organized efforts, representation grew into self-identification

Nationalism

  • 1773 Boston Tea Party by the Sons of Liberty
  • England responds with “Intolerable Acts” of 1774: more tax collectors and more troops
  • Created widespread patriotism
  • Many became frustrated with diplomacy and made demands for freedom with force
  • Many of the Southern colonies were motivated by the 1772 Somerset Decision that made slavery illegal in England

Origins of the Constitution

There are two central precursors to our Constitution

The Declaration of Independence

  • Written by Jefferson (he was actually a last minute replacement)
  • Two enduring political ideas are laid out in the Declaration of Independence
  • Natural Rights and
  • the Social Contract

Natural Rights

What are Natural Rights?

  • Right to Life, Liberty, and the Pursuit of Happiness

Why are they “natural”?

  • Because we have them by virtue of being human, hence they are “unalienable”

Developed in the writings of John Locke as “Life, Liberty, and Property”

  • Locke was concerned about how rational individuals would overcome the “inconveniences” of a “state of nature” without government

Social Contract

  • What is a Social Contract?
  • According to the Declaration, these natural rights were to be secured through a social contract between consenting citizens and the government
  • We give up some of our liberties by agreeing to abide by the laws of society and, in return, our natural rights are protected

The Social Contract

The Signers

  • The signers were fully committed to the cause. They were, after all, committing treason
  • At the signing, it has been reported that Benjamin Harrison, a rather large man, said to the thin-framed William Ellery, “I shall have a great advantage over you, Mr. Ellery, when we are all hung for what we are now doing. From the size and weight of my body, I shall die quickly, but from your lightness of body, you will dance for some time before you are dead.”

Republicanism and the Spirit of ’76

  • Following the passage of the Declaration of Independence a sense of equality and empowerment became widespread
  • Republicanism: that power should remain close to the people > political elites
  • Created very democratic state constitutions
  • Popularly elected legislatures
  • Limited power to the executive
  • Short terms of office

A Constitution

A Constitution is the basic law of society

  • It’s society’s rule book
  • It provides a general vision
  • creates political structures
  • and how those structures will function
  • It places limits on power and establishes rights
  • Consequently, in order to understand contemporary politics, one must study our Constitution

Constitutionalism = Limited Government

Articles of Confederation

  • The Continental Congress’ first Constitution
  • What is a confederation?
  • Essentially an association of sovereign states with a weak central government
  • Decentralized Power
  • Units are Sovereign
  • Can delegate power upwards
  • Always Conditional and can be Revoked
  • What’s the main drawback?
  • Often too weak to be effective

Problems with the Articles

Financial:

  • Couldn’t tax, could only request money from the states
  • Couldn’t regulate the economic “warfare” between many of the states
  • Different currencies in different states made trade difficult and inflation rampant

Problems with the Articles

Couldn’t protect from threats

  • Externally: With no money to raise an army and little unity between the states, both Britain and Spain were interfering with our lands and trade to the West
  • Internally: The economic turmoil resulted in peasant and farmer revolts (Shay’s Rebellion)

Life under the Articles

  • Consider how the various groups fared under the Articles of Confederation and the Constitution:
  • The Governors
  • The Federalists and the Continental Congress
  • The economic elite
  • Workers and small farmers
  • Women and slaves

Constitutional Convention

  • Because of these problems, representatives from all states met in Philadelphia during the oppressively hot summer of 1787
  • They were instructed to meet “for the sole and expressed purpose of revising the Articles of Confederation”
  • But, one of the first things decided was to scrap the Articles and start over

The Framers

  • Who were they?
  • Federalist revolutionaries, nationalists, and clever politicians
  • They were not Gods, but men and created a document through hard work and compromise

The Framers

  • They were also the “rich, well-born and able”
  • Preservation of property was a central concern
  • Self-Interest was important but so was morality
  • If everyone were really only out to advance their own interests, what would happen to our economy?

Read the U.S. Constitution

  • What do the main articles (I, II, III) discuss?
  • Find the Necessary and Proper Clause (also called the Elastic Clause)
  • Find the Supremacy Clause
  • What is the substance of each amendment to the US Constitution?

Central Dilemmas

  • How will states share power in the new government?
  • What about slavery?
  • How will the new government be strong enough to work but not so strong that it becomes tyrannical?
  • How much Power to the People?
  • How will the new Constitution be ratified?

Representation

Power sharing between large (Virginia plan) and small states (New Jersey plan)

  • Resolved through Great (Connecticut) Compromise
  • One house with representation by population
  • One house with each state represented equally

Slavery

Slavery: most wanted it abolished

  • This was a deal-breaker for the South
  • Slave trade wouldn’t be banned for 20 years
  • Do slaves count as population for the purposes of representation and taxation?
  • Compromise: Slaves count as 3/5 a person
  • Eventually resulted in a brutal civil war

Fragmented Power

  • Difficult task:
  • Needed to create a government that was strong enough govern but not so strong as to become tyrannical
  • Madison devised a system of “checks and balances”
  • Not just separate, but shared powers; each branch requires the consent of the others
  • Convention Video Clip

Republic: Insulated Democracy

Rule by the people, but indirectly

  • Who could vote?
  • Generally white males with property
  • For whom could they vote?
  • Only Representatives to the House, Senators were selected by state legislatures, and the President was selected by special “electors”
  • Why?
  • Wanted to make sure that only individuals who had the right temperament, knowledge, experience and disposition would rule
  • Were concerned about mob rule like the abolition of all debt in some states under the articles

Human Nature and
Classical Liberalism

  • The Framers wanted to create a Republic in which leaders had the best long term interest of the Public at heart (think rePUBLIC)
  • They didn’t want people solely voting according to their own selfish interests (Democracy?)
  • Wanted to avoid the election of demagogues
  • Would prey on the fears and passions and selfish interests of individuals that might be contrary to the best interest of the nation

Federalist #10

  • What is a faction?
  • Why do factions arise?
  • What is the problem with factions?
  • What is the tyranny of the majority?
  • How can you solve this problem?
  • Why can you do this in a republic and not a democracy?
  • What is the advantage of a large republic over a small?

Federalist #10

  • Madison was concerned about groups gaining advantages at the expense of others or the nation as a whole
  • This would be facilitated in a direct or pure democracy (ballot propositions?)
  • This is why you want a certain kind of wise and just elected leader
  • Why you have indirect democracy at the national level
  • Also, local tyrannies will cancel each other out in this new larger government

Federalist #51

  • How can we create a government
    that is strong enough to govern
    but not too strong?
  • Paragraph 1: what is a department and how should power be divided between them?
  • Paragraph 4: What is the assumption about human nature?
  • Why two houses with different terms?
  • Why a “compound” government?

Human Nature and
Classical Liberalism

  • What does Federalist #10 and #51 assume about human nature?
  • How does self-interest contribute to the rise of factions (Federalist #10)?
  • Can we simply abandon trust, loyalty, and honesty in the political and economic spheres?
  • What about social capital (Putnam)?

Human Nature and
Insulated Democracy

  • Were the Framers correct to limit direct input from the masses?
  • How have we become more democratic since 1787?
  • Direct election of Senators
  • Electoral College based on popular vote
  • Any examples of direct democracy?
  • Ballot Initiatives in many states?
  • Is this better? Why or why not?

Short Term Economic Gain and Long Term Social Costs

  • What’s the advantage of a limited-liability company?
  • It reduces the risk (and commitment) of the shareholder/owners.
  • Will shareholders take a short or long-term view toward profits?
  • What’s the easiest way to raise short-term profits: cut costs or raise revenues?

  • What effect does this have on:
  • The workers?
  • The long-term interests of the company?
  • The government’s treatment of corporations?
  • Income inequality and the growth of factions?

Anti-Federalist #1

  • Why does Brutus think the power of the general gov’t will eclipse the states?
  • Look at Article 1, Section 8
  • Will the same be true of the Courts?
  • What is his assumption of human nature?
  • What are the advantages of government in a small place?
  • For representation?
  • For citizen knowledge?
  • What about diversity of place?
  • Contrast this argument with that in Federalist #10/Tyranny of the Majority
  • Note his concerns regarding a standing army and an imperial power

Ratification

  • A very tough fight
  • Federalists advocated the new system as they recognized we needed a strong government to guide a strong nation
  • Anti-Federalists were worried about too much centralization of elite power
  • The Federalists succeeded through better organization, but the Anti-Federalists secured a Bill of Rights

Anti Federalists

  • Jefferson argued that small farmers were essential to democracy; why?
  • They provide for and are the backbones of local communities; this allows some independence from and a platform to resist the encroachments of a tyrannical government
  • Can you think of a contemporary analogy?
  • Perhaps local businesses as a line of defense from the encroachments of multi-national corporations

Constitutional Characteristics

Works slowly

  • Shared and separated power, etc.
  • Hard to get effective policy passed
  • Most other governments haven’t copied
  • Advantages of moving slowly?
  • Deliberative Democracy: reflect and refine views, bias towards the status quo

Constitutional Evolution

Procedural Constitution: general and brief

  • How to do things, not what will be done
  • Open to interpretation to fit future conditions, “living document”
  • Formal amendment process is difficult
  • only 27 in over 2 centuries and many have made the document more democratic (who can vote and on what they can vote)

Dual Constitutionalism

  • Both states and the federal government have constitutions
  • Both are basic rules for each level
  • But the national government has supremacy within those spheres of authority delegated to it in the U.S. Constitution

CA 1849 Constitution

  • Established the basic structure of government
  • 16 point bill of rights including:
  • No Slavery
  • Property Rights for Women
  • Printed in both English and Spanish
  • Exhibited at Golden State Museum in Sacramento

CA Constitution of 1878

  • Much more detail and specificity
  • Further limitation on government
  • Many specific provisions addressing a variety of groups
  • Reflects the idea of Hyperpluralism
  • Dominated by Elite and Special Interests
  • All wanting their advantages in the Constitution

CA Constitution: Detailed and Long

  • 33,000 words in length
  • Amended nearly 500 times (v. 27 U.S.)
  • 4th largest Constitution in the world
  • Why so BIG?
  • “Substantive” (v. Procedural)
  • Has had to grow as the state has

Excessive Detail

  • Bewildering variety of specific topics:
  • Sale of alcoholic beverages on planes
  • the Alumni Association of the UC
  • Cafeteria budgets of state agencies
  • use of Bingo by charitable groups
  • the right of citizens to fish
  • Property tax exemption for grape vines less than three years old, etc.