government essay
henny.rolz
govt2305_ch2.pdf
# 153120 Cust: Cengage Au: Dautrich Pg. No. 24 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
2 The Founding and the Constitution
Chapter
53048_ch02_ptg01_hr_024-053.indd 24 09-11-2014 09:13:54
# 153120 Cust: Cengage Au: Dautrich Pg. No. 25 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
The Founding and the Constitution
Learning Objectives
2.1 THE BEGINNINGS OF A NEW NATION • Discuss the origins and causes of the American Revolution • Describe the first national government under the Articles of Confederation,
including its strengths, weaknesses, and struggles
2.2 THE CONSTITUTIONAL CONVENTION • Compare and contrast the various plans for the new constitution and the
obstacles to agreement among the different colonies
2.3 THE NEW CONSTITUTION • Explain the principles incorporated in the new constitution, including popular
sovereignty, the separation of powers, federalism, and limited government
2.4 THE RATIFICATION BATTLE • Evaluate the advantages enjoyed by those seeking to ratify the new constitution • Assess the role that the Federalist Papers played in ratification • Explain the origins of the Bill of Rights and its role in securing ratification
2.5 CHANGING THE CONSTITUTION • Describe the process of amending the Constitution • Outline the informal types of constitutional change, including different forms
of constitutional interpretation
T he U.S. Constitution has governed the United States continuously since 1789; it is the longest-lasting governing document in the world today. Thus the enduring capacity of the U.S. Constitution to govern for better than two centuries represents something of a miracle: by one estimate, the average lifespan of
national constitutions over this same period was just 17 years. Other countries’ constitutions have been especially vulnerable during crises; by contrast, the U.S. Constitution has survived many such crises, including the Civil War of the 1860s, the Great Depression of the 1930s, two world wars, the Cold War against the Soviet Union, and the 9/11 terrorist attacks. How has the American constitutional experiment succeeded for so long? The secret lies in its capacity to serve two functions at the same time: it provides stability (just 17 amendments passed during the last two centuries), while at the same time offering the flexibility to adapt to changes in America’s political culture. Woodrow Wilson addressed this when he wrote: “the Constitution of the United States is not a mere lawyers’ docu- ment: it is a vehicle of life, and its spirit is always the spirit of the age.”©
M ic
ha el
V en
tu ra
/A la
m y;
© iS
to ck
ph ot
o. co
m /D
N Y5
9
WATCH & LEARN for American Government Watch a brief “What Do You Know?” video summarizing The Constitution.
53048_ch02_ptg01_hr_024-053.indd 25 09-11-2014 09:14:08
27
# 153120 Cust: Cengage Au: Dautrich Pg. No. 26 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
The Constitution’s capacity to evolve with chang-ing times is hardly a given: when change does occur it takes place slowly, and often with nu- merous starts and stops along the way. As the United States sank further into the Great Depression during the early 1930s, certain principles of government re- lations remained essentially unchanged from the early days of the republic. That included the “non-delegation doctrine,” which prohibited Congress from passing its constitutionally prescribed lawmaking powers to other branches. Beginning in 1933, a forceful new chief ex- ecutive, Franklin Roosevelt (FDR), offered new and innovative solutions to the nation’s economic woes. Rejecting the laissez-faire approach to government’s role in the economy, FDR encouraged the promulga- tion of new rules for industries that had never been regulated before, as the unwieldy size of Congress left that branch largely powerless to effectively hold those businesses accountable with detailed regulations. FDR had already pressed Congress to pass broad economic regulations under an expanded definition of the in- terstate commerce clause. Next, he planned to stretch the Constitution further than ever before. Specifi- cally, on June 16, 1933, he signed into law the National
Industrial Recovery Act (NIRA), by which Congress authorized the chief executive to approve codes gener- ated by trade associations regarding maximum hours of labor, minimum rates of pay, and working condi- tions in different lines of business. The Roosevelt ad- ministration approved over 700 industry codes in all before the Supreme Court invalidated portions of the NIRA in Schechter Poultry Corp v. U.S. (1935). Still, even that legal setback could not stop the growth of the welfare state under Roosevelt and his successors: Between 1935 and 1980 the federal government grew exponentially on the backs of executive agencies is- suing rules and regulations that clearly amounted to lawmaking. The Constitution’s capacity to stretch eventually afforded the federal government more flex- ibility to offer innovative solutions for an increasingly complex society.
1754–63 French and Indian War waged between Great Britain and France, resulting in significant debts for Great Britain and later efforts by England to exact revenue from the colonies
1776 Continental Congress consisting of delegates from all 13 colonies adopts the Declaration of Independence
1787 Constitutional Convention meets in Philadelphia to draft new constitution; Great Compromise featuring a bicameral legislature balancing interests of large and small states forges consensus among the delegates
1787–88 Federalist Papers published, outlining philosophy and justification of proposed Constitution
1933
Franklin Delano Roosevelt, signing into law emergency economic relief legislation in May 1933, during the first
100 days of his administration.
Be tt
m an
n/ CO
RB IS
26
Now
53048_ch02_ptg01_hr_024-053.indd 26 09-11-2014 09:14:13
27
# 153120 Cust: Cengage Au: Dautrich Pg. No. 27 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
1788 Constitution ratified by required three- fourths of state ratifying conventions
26
A decade into the twenty-first century, the prom-ise of universal health care remained unfulfilled despite the efforts of several earlier presidents to shepherd such legislation through Congress. The election of President Barack Obama gave new hope to universal care advocates that their day might finally arrive. In 2010 the Democratic Congress abided by Obama’s wishes when it narrowly passed health care re- form that approached a universal care standard by re- quiring all individuals to purchase some form of health insurance by January 1, 2014, or be subject to financial penalties. The so-called “individual mandate” had en- joyed the support of conservatives two decades earlier; but now it was opposed vehemently by Republicans in Congress, conservative interest groups, and, per- haps most notably, many constitutional traditionalists. Obama’s critics claimed that the mandate was a symbol of “social totalitarianism”; meanwhile, defenders of the law argued that fairness dictated such a requirement, given that any individual may find him- or herself in need of expensive emergency care at some point. Lower courts divided on the issue: while a handful
of appellate courts upheld the law, the U.S. Court of Appeals for the 11th Circuit ruled that the mandate represents “a wholly novel and potentially unbounded assertion of congressional authority: the ability to com- pel Americans to purchase an expensive health insur- ance product they have elected not to buy. . . .” In short, President Obama was trying to stretch the Constitution in new and unprecedented ways. On June 28, 2012, the Supreme Court accepted President Obama’s argument that the individual mandate was constitutional on the ground that it was a valid exercise of Congress’s taxing power. The federal government’s efforts to offer inno- vative solutions to modern problems will continue to push traditional constitutional principles in new di- rections. In that sense, the battle over policy initiatives such as health care reform remains inextricably bound to a larger battle over the nature of the Constitution itself, and its capacity to adapt to changing times.
Now President Barack Obama, addressing the
“Families USA Health Action Conference” on January 28, 2011.
1791 Bill of Rights ratified
1972 Congress (by two-thirds vote of both houses) proposes the Equal Rights Amendment for women (it failed to garner the support of the required 38 state legislatures necessary for ratification)
1992 The Twenty-Seventh Amendment is ratified 203 years after being proposed by the first Congress
2011
A P
Im ag
es /J
. S co
tt A
pp le
w hi
te
53048_ch02_ptg01_hr_024-053.indd 27 09-11-2014 09:14:21
28 Chapter 2 The Founding and the Constitution
# 153120 Cust: Cengage Au: Dautrich Pg. No. 28 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
2.1 The Beginnings of a New Nation Throughout the seventeenth and early eighteenth centuries, thousands of people migrated to North America. Many came in search of greater economic opportunities; others fled to escape religious persecution and sought freedom to worship as they pleased. Slowly, a culture dedi- cated to the protection of social and civil rights began to take shape in the colonies.
The political structures that governed the colonies up through the early 1760s roughly par- alleled those of England during the same period: (1) royal governors served as substitutes for the king in each individual colony; (2) a governor’s council in each colony served as a mini House of Lords, with the most influential men in the colony serving effectively as a high court; and (3) the general assembly in each colony was elected directly by the qualified voters in each colony and served essentially as a House of Commons, passing ordinances and regulations that would govern the colony. Up until the middle of the eighteenth century, the colonies’ diverse histories and economies had provided little incentive for them to join together to meet shared goals. In fact, those in Great Britain feared other European powers attempting to encroach on their American holdings far more than they feared any form of uprising on the part of the colonists.
The French and Indian War that was waged in the colonies from 1754 through 1763 was a significant turning point in British–colonial relations.1 For nearly a decade, the French, from their base in Canada, fought the British in the colonies for control of the North American empire. Both nations were interested in rights to the territory that extended west of the co- lonial settlements along the Atlantic seaboard and over the Appalachian Mountains into the Ohio Valley. Britain defeated France, and under the terms of the Treaty of Paris (1763), which settled the war, all territory from the Arctic Ocean to the Gulf of Mexico between the Atlantic Ocean and the Mississippi River (except for New Orleans, which was ceded to Spain, an ally of Britain during the war) was awarded to Britain. But along with the acquisition of all this new territory came a staggering debt of approximately 130 million pounds. Administering its huge new North American empire would be a costly undertaking for Britain.
British Actions
Following the war, Britain imposed upon its colonies a series of regulatory measures intended to make the colonists help pay the war debts and share the costs of governing the empire. To prevent colonists from ruining the prosperous British fur trade, the Proclamation of 1763 restricted them to the eastern side of the Appalachian chain, angering those interested in set- tling, cultivating, and trading in this new region. The Sugar Act (1764) was the first law passed by Parliament for the specific purpose of raising money in the colonies for the Crown. (Other regulatory acts passed earlier had been enacted for the purpose of controlling trade.) The Sugar Act (1) increased the duties on sugar; (2) placed new import duties on textiles, coffee, indigo, wines, and other goods; and (3) doubled the duties on foreign goods shipped from England to the colonies. The Stamp Act (1765) required the payment of a tax on the purchase of all newspapers, pamphlets, almanacs, and commercial and legal documents in the colonies. Both acts drew outrage from colonists, who argued that Parliament could not tax those who were not formally represented in its chambers. Throughout late 1765 and early 1766, angry colonists protested the Stamp Act by attacking stamp agents who attempted to collect the tax, destroying the stamps, and boycotting British goods. When English merchants complained bitterly about the loss of revenue they were suffering as a result of these colonial protests, Par- liament repealed the Stamp Act in March 1766.2
Colonial Responses
As a result of the Stamp Act fiasco, positions on the state of British rule were articulated both in the colonies and in Parliament. Following the lead of the Virginia assembly, which sponsored
LISTEN & LEARN for American Government
Access Read Speaker to listen to Chapter 2.
53048_ch02_ptg01_hr_024-053.indd 28 09-11-2014 09:14:21
Chapter 2 The Founding and the Constitution 29
# 153120 Cust: Cengage Au: Dautrich Pg. No. 29 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
the Virginia Resolves that had declared the principle of “no taxation without representation,” an intercolonial Stamp Act Congress met in New York City in 1765. This first congressional body in America issued a Declaration of Rights and Grievances that acknowledged allegiance to the Crown, but reiterated the right to not be taxed without consent. Meanwhile, the British Parliament—on the same day that it repealed the Stamp Act—passed into law the Declaratory Act, asserting that the king and Parliament had “full power and authority” to enact laws bind- ing on the colonies “in all cases whatsoever.”
Despite the colonists’ protests, Parliament continued to pass legislation designed to raise revenue from the colonies. The Townshend Acts, passed in 1767, imposed duties on various items, including tea, imported into the colonies and created a Board of Customs Commis- sioners to enforce the acts and collect the duties. When the colonists protested by boycot- ting British goods, in 1770 Parliament repealed all the duties except that on tea. The Tea Act, enacted in 1773, was passed to help the financially troubled British East India Company by relaxing export duties and allowing the company to sell its tea directly in the colonies. These advantages allowed the company to undersell colonial merchants. Angry colonists saw the act as a trick to lure Americans into buying the cheaper tea and thus ruining American tea sell- ers. On December 16, 1773, colonists disguised as Mohawk Indians boarded ships in Boston Harbor, and threw overboard their cargoes of tea. Outraged by this defiant Boston Tea Party, Parliament in 1774 passed the Intolerable Acts (known in the colonies as the Coercive Acts), designed to punish the rebellious colonists. The acts closed the port of Boston, revised the
Patrick Henry, a leading revolutionary who coined the phrase “Give me liberty or give me death,” speaking before the Virginia House of Burgesses in 1775.
Topham/The Image Works
53048_ch02_ptg01_hr_024-053.indd 29 09-11-2014 09:14:25
30 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 31
# 153120 Cust: Cengage Au: Dautrich Pg. No. 30 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
Massachusetts colonial government, and required the colonists to provide food and housing for British troops stationed in the colonies.
The colonists had had enough. In September 1774, 56 leaders from 12 colonies (there were no delegates from Georgia) met in Philadelphia to plan a united response to Parliament’s ac- tions. This First Continental Congress denounced British policy and organized a boycott of British goods. Although the Congress did not advocate outright independence from England, it did encourage the colonial militias to arm themselves and began to collect and store weap- ons in an arsenal in Concord, Massachusetts. The British governor general of Massachusetts ordered British troops to seize and destroy the weapons. On their way to Concord, the troops met a small force of colonial militiamen at Lexington. Shots were exchanged, but the militia- men were soon routed and the British troops marched on to Concord. There they encountered a much larger group of colonial militia. Shots again were fired, and this time the British re- treated. The American Revolution had begun.
The Decision for Independence
Despite the events of the early 1770s, many leading colonists continued to hold out hope that some settlement could be reached between the colonies and Britain. The tide turned irrevocably in early 1776, when one of the most influential publications of this period, Common Sense, first appeared. In it, Thomas Paine attacked King George III as responsible for the provocations against the colonies, and converted many wavering Americans to the cause of independence.3
On June 7, 1776, Richard Henry Lee, a delegate to the Second Continental Congress from Virginia, proposed a resolution stating that “these United Colonies are, and of right ought to be, free and independent States.” Of course the Congress needed a formal document both to state the colonies’ list of grievances and to articulate their new intention to seek indepen- dence. The Congress thus appointed a committee to draft a document that would meet those objectives.
The committee, consisting of Thomas Jefferson, John Adams, Roger Sherman, Robert Livingston, and Benjamin Franklin, appointed Jefferson to compose the document. At first, Jefferson may have seemed an unlikely choice to produce such a declaration. The 33-year-old lawyer and delegate to the Continental Congresses of 1775 and 1776 had played a relatively minor role in those bodies’ deliberations. But according to historian David McCullough, Adams initially believed that the document was really just a symbolic “side show,” and quickly justified the choice of Jefferson over himself as follows: “Reason first: you are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.” Later, Adams fumed for decades over the larger-than-life reputation Jefferson gained on the basis of authoring the nation’s first great political document.4
The committee submitted its draft to Congress on July 2, 1776; after making some changes, Congress formally adopted the document on July 4. The Declaration of Independence restated John Locke’s theory of natural rights and the social contract between government and the governed.5 Locke had argued that although citizens sacrifice certain rights when they consent to be governed as part of a social contract, they retain other inalienable rights. In the Declaration, Jefferson reiterated this argument with the riveting sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” Jefferson went on to state that whenever government fails in its duty to secure such rights, the people have the right to “alter” or “abolish” it and institute a new one. Through the centuries, America’s political leaders have consistently invoked the Declaration of Independence as per- haps the truest written embodiment of the American Revolution. Before independence could become a reality, however, the colonists had to fight and win a war with Great Britain.
Declaration of Independence: Formal document listing colonists’ grievances and articulating the colonists’ intention to seek indepen- dence; formally adopted by the Second Continental Congress on July 4, 1776.
53048_ch02_ptg01_hr_024-053.indd 30 09-11-2014 09:14:25
30 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 31
# 153120 Cust: Cengage Au: Dautrich Pg. No. 31 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
The First National Government: The Articles of Confederation
The colonies also needed some sort of plan of government to direct the war effort. The Second Continental Congress drew up the Articles of Confederation, a written statement of rules and principles to guide the first continent-wide government in the colonies during the war and beyond. Although the document was initially adopted by Congress in 1777, it was not formally ratified by all 13 states until 1781. The Articles of Confederation created a “league of friend- ship” among the states, but the states remained sovereign and independent, with the power and authority to rule the colonists’ daily lives. The sole body of the new national government was the Congress, in which each state had one vote. As shown in Table 2.1, the Congress enjoyed only limited authority to govern the colonies: it could wage war and make peace, coin money, make treaties and alliances with other nations, operate a postal service, and manage relations with the Native Americans.6 But Congress had no power to raise troops, regulate commerce, or levy taxes, which left it dependent on state legislatures to raise and support armies or provide
Articles of Confederation: The document creating a “league of friendship” govern- ing the 13 states during and immediately after the war for independence; hampered by the limited power the docu- ment vested in the legislature to collect revenue or regulate commerce, the Articles eventu- ally proved unworkable for the new nation.
Table 2.1 The Articles of Confederation and the U.S. Constitution: Key Features
Articles of Confederation Provisions Problems Generated 1787 Federal Constitution
Unicameral (one-house) Congress with each state having one vote, regardless of population
Gave smaller, less populated states disproportionate power in lawmaking
Bicameral (two-house) legislature with one house apportioned by population (House of Representatives) and second house (Senate) apportioned equally among states (two senators from each state)
Approval by 9 of 13 states required for most legislative matters
Restricted lawmaking by simple majorities, halting the legislative process in most cases
Approval of simple majority (one-half plus one) of both houses required for most legislation
No separate executive or judiciary Legislative abuses went unchecked Three separate branches of government: legislative, executive, and judicial
Congress did not have the power to regulate foreign or interstate commerce
States negotiated separately among themselves and with foreign powers on commercial matters, to the detriment of the overall economy
Congress given power to regulate interstate and foreign commerce
Congress did not have the power to levy or collect taxes
Suffering from the economic depression and saddled with their own war debts, states furnished only a small portion of the money sought by Congress
Congress given power to levy and collect taxes
Congress did not have the power to raise an army
Once the war with Britain had ended, states were reluctant to provide any support for an army
Congress given power to raise and support armies
Amendments to Articles required unanimous approval of state legislatures
Articles were practically immune from modification, and thus inflexible to meet changing demands of a new nation
Amendments to Constitution require two-thirds vote of both houses of Congress, ratification by three-fourths of states
© 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 31 09-11-2014 09:14:25
32 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 33
# 153120 Cust: Cengage Au: Dautrich Pg. No. 32 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
Daniel Shays leads a rebellion of farmers to a Massachusetts courthouse in 1786 to protest the state legislature’s inaction.
N or
th W
in d
Pi ct
ur e
A rc
hi ve
s
other services. Congress’s inability to raise funds significantly hampered the efforts of George Washington and the Continental Army during the war against Britain. Although Congress employed a “requisition system” in the 1780s, which essentially asked that states voluntarily meet contribution quotas to the federal government, the system proved ineffective. New Jersey, for example, consistently refused to pay such requisitions. Reflecting the colonists’ distrust of a strong centralized government, the Articles made no provision for a chief executive who could enforce Congress’s laws.
The limited powers of the central government posed many problems, but changing the Articles of Confederation to meet the needs of the new nation was no easy task. The Articles could be amended only by the assent of all 13 state legislatures, a provision that made change of any kind nearly impossible. Wealthy property owners and colonial merchants were frus- trated with the Articles for various reasons. Because Congress lacked the power to regulate interstate and foreign commerce, it was exceedingly difficult to obtain commercial conces- sions from other nations. Quarrels among states disrupted interstate commerce and travel. Finally, a few state governments (most notably, that of Pennsylvania) had come to be domi- nated by radical movements that further threatened the property rights of many wealthy, landowning colonists.
These difficulties did not disappear when the war ended with the Americans’ victory in 1783. Instead, an economic depression, partially caused by the loss of trade with Great Britain
53048_ch02_ptg01_hr_024-053.indd 32 09-11-2014 09:14:31
32 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 33
# 153120 Cust: Cengage Au: Dautrich Pg. No. 33 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
and the West Indies, aggravated the problems facing the new nation. In January 1785, an alarmed Congress appointed a committee to consider amendments to the Articles. Although the committee called for expanded congressional powers to enter commercial treaties with other nations, no action was taken. Further proposals to revise the Articles by creating federal courts and strengthening the system of soliciting contributions from states were never even submitted to the states for approval; congressional leaders apparently despaired of ever win- ning the unanimous approval of the state legislatures needed to create such changes.
Then in September 1786, nine states accepted invitations to attend a convention in Annapolis, Maryland, to discuss interstate commerce. Yet when the Annapolis Convention opened on September 11, delegates from only five states (New York, New Jersey, Delaware, Pennsylvania, and Virginia) attended. A committee led by Alexander Hamilton, a leading force at the Annapolis meeting, issued a report calling upon all 13 states to attend a conven- tion in Philadelphia the following May to discuss all matters necessary “to render the consti- tution of the federal government adequate to the exigencies of the Union.” At the time, few knew whether this proposal would attract more interest than had previous calls for a new government.
Events in Massachusetts in 1786–1787 proved a turning point in the creation of momentum for a new form of government. A Revolutionary War veteran, Daniel Shays was also one of many debt-ridden farmers in Massachusetts, where creditors controlled the state government. Shays and his men rebelled against the state courts’ foreclosing on the farmers’ mortgages for failure to pay debts and state taxes.7 When the state legislature failed to resolve the farmers’ grievances, Shays’s rebels stormed two courthouses and a federal arsenal.8 Eventually the state militia put down the insurrection, known as Shays’s Rebellion, but the message was clear: a weak and unresponsive government carried with it the danger of disorder and violence. In February 1787, Congress endorsed the call for a convention to serve the purpose of drafting amendments to the Articles of Confederation, and by May 11 states had acted to name del- egates to the convention to be held in Philadelphia.
2.2 The Constitutional Convention The Constitutional Convention convened on May 25, 1787, with 29 delegates from 9 states in attendance. Over the next four months, 55 delegates from 12 states would participate. Fiercely resistant to any centralized power, Rhode Island sent no delegates. Some heroes of the American Revolution like Patrick Henry refused ap- pointments due to their opposition to the feelings of nationalism that had spurred the convention to be held in the first place. Meanwhile, lending authority to the proceedings were such well-known American figures as George Washington, Alexander Hamilton, and Benjamin Franklin. (The 36-year-old James Madison of Virginia was only beginning to establish a reputation for himself when he arrived in Philadelphia; meanwhile, John Adams and Thomas Jefferson were both on dip- lomatic assignment in Europe.)
The delegates, who unanimously selected Washington to preside over the con- vention, were united by at least four common concerns: (1) the United States was being treated with contempt by other nations, and foreign trade had suffered as a consequence; (2) the economic radicalism of Shays’s Rebellion might spread in the absence of a stronger central government; (3) the Native Americans had re- sponded to encroachment on their lands by threatening frontiersmen and land speculators, and the national government had been ill-equipped to provide citi- zens with protection; and (4) the postwar economic depression had worsened, and the national government was powerless to take any action to address it.9 Of course, on many other matters the delegates differed. Those from bigger, more heavily
Portrait of George Washington, circa 1775. Washington was elected president of the Constitutional Convention in Philadelphia.
M an
se ll/
Ti m
e Li
fe P
ic tu
re s/
G et
ty Im
ag es
Shays’s Rebellion: Armed uprising by debt-ridden Massachusetts farmers frustrated with the state government.
Constitutional Convention: Meeting of delegates from 12 states in Philadelphia during the summer of 1787, at which was drafted an entirely new sys- tem to govern the United States.
53048_ch02_ptg01_hr_024-053.indd 33 09-11-2014 09:14:34
34 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 35
# 153120 Cust: Cengage Au: Dautrich Pg. No. 34 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
populated states such as Virginia and Pennsylvania wanted a central government that reflected their larger population bases, whereas those from smaller states like Georgia and Delaware hoped to maintain the one-state, one-vote principle of the Articles.
Plans and Compromises
It quickly became evident that a convention originally called to discuss amendments to the Articles of Confederation would be undertaking a more drastic overhaul of the American system of government. Members of the Virginia delegation got the ball rolling when they introduced the Virginia Plan, also known as the “large states plan,” which proposed a na- tional government consisting of three branches—a legislature, an executive, and a judiciary. The legislature would consist of two houses, with membership in each house proportional to each state’s population. The people would elect members of one house, and the members of that house would then choose members of the second house. The legislature would have the power to choose a chief executive and members of the judiciary, as well as the author- ity to legislate in “all cases to which the states are incompetent” or when the “harmony of the United States” demands it. Finally, the legislature would have power to veto any state law. Under the plan, the only real check on the legislature would be a Council of Revision, consisting of the executive and several members of the judiciary, which could veto the legislature’s acts.
To counter the Virginia Plan, delegates from less populous states proposed the New Jersey Plan, which called for a one-house legislature in which each state, regardless of size, would have equal representation. The New Jersey Plan also provided for a national judiciary and an executive committee chosen by the legislature; expanded the powers of Congress to include the power to levy taxes and regulate foreign and interstate commerce; and asserted that the new constitution and national laws would become the “supreme law of the United States.” Both the Virginia and New Jersey plans rejected a model of government in which the executive would be given extensive authority.
By July 2, 1787, disagreements over the design of the legislature and the issue of representa- tion had brought the convention to a near dead end. The delegates then agreed to submit the matter to a smaller committee in the hope that it might craft some form of compromise.
The product of that committee’s deliberations was a set of compromises, termed the Great Compromise by historians. (Formally proposed by delegate Roger Sherman of Connecti- cut, the agreement is also known as the Connecticut Compromise.) As shown in Table 2.2, its critical features included (1) a bicameral (two-house) legislature with an upper house or “Senate” in which the states would have equal power with two representatives from each state, and a lower House of Representatives in which membership would be apportioned on the basis of population; and (2) the guarantee that all revenue bills would originate in the lower house. The convention delegates settled as well on granting Congress the authority to regu- late interstate and foreign commerce by a simple majority vote, but required that treaties be approved by a two-thirds vote of the upper house. The Great Compromise was eventually approved by a narrow 5–4 margin of the state delegations. Connecticut, New Jersey, Delaware, Maryland, and North Carolina approved; Pennsylvania, Virginia, South Carolina, and Georgia opposed; New York and New Hampshire were absent, and the Massachusetts delega- tion was deadlocked. Thus a vote margin of just one state paved the way for the creation of a new federal government.
Compromise also resolved disagreement over the nature of the executive. Although re- jecting the New Jersey Plan’s call for a plural executive—in which officials would have exer- cised executive power through a multi-person council—the delegates split on whether the executive should be elected by members of Congress or directly by the people. The agreement reached called for the president (and vice president) to be elected by an electoral college. Because the number of electors equaled that of the number of representatives and senators
Virginia Plan: A proposal known also as the “large states plan” that empowered three separate branches of govern- ment, including a legislature with membership proportional to population.
New Jersey Plan: A proposal known also as the “small states plan” that would have retained the Articles of Confedera- tion’s principle of a legislature where states enjoyed equal representation.
Great Compromise: A pro- posal also known as the “Connecticut Compromise” that provided for a bicameral legislature featuring an upper house based on equal represen- tation among the states and a lower house whose membership was based on each state’s popu- lation; approved by a 5–4 vote of the state delegations.
53048_ch02_ptg01_hr_024-053.indd 34 09-11-2014 09:14:34
34 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 35
# 153120 Cust: Cengage Au: Dautrich Pg. No. 35 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
The Virginia Plan The New Jersey Plan The Great Compromise
Introduced on May 29, 1787, by Edmund Randolph of Virginia; favored initially by delegates from Virginia, Pennsylvania, and Massachusetts
Introduced on June 15, 1787, by William Paterson of New Jersey; favored initially by delegates from New Jersey, New York, Connecticut, Maryland, and Delaware
Introduced by Roger Sherman of Connecticut; approved at the convention by a narrow 5–4 vote on July 16, 1787
Bicameral legislature with one house elected by the people and second house chosen by the first
Unicameral legislature elected by the people
Bicameral legislature with one house elected by the people and second house chosen by state legislatures
All representatives and senators apportioned by population
Equal representation among states Members of one house (representatives) apportioned by population (five slaves counted as three free men); members of second house (senators) apportioned equally among states
Singular executive chosen by the legislature
Plural executive chosen by the legislature
Singular executive chosen by the “electoral college” (electors appointed by state legislatures choose president; if no one receives majority, House chooses president)
Congress can legislate wherever “states are incompetent” or to preserve the “harmony of the United States”
Congress has the power to tax and regulate commerce
Congress has power to tax only in proportion to representation in the lower House; all appropriation bills must originate in lower House
Table 2.2 The Virginia Plan, the New Jersey Plan, and the Great Compromise
from each state, this system gave disproportionately greater influence to smaller states. As chief executive, the president would have the power to veto acts of Congress, make treaties and appointments with the consent of the Senate, and serve as commander-in-chief of the nation’s armed forces.
The Slavery Issue
The issue of representation collided with another thorny issue looming over the convention proceedings: the issue of slavery. Four Southern states—Maryland, Virginia, North Carolina, and South Carolina—had slave populations of more than a hundred thousand each. Mean- while, as shown in Figure 2.1, two New England states, Maine and Massachusetts, had already banned slavery and another four Northern states—Vermont, New Hampshire, Rhode Island, and Connecticut—maintained extremely low concentrations of slavery within their borders. The steady march of abolition in the North was matched by a Southern slave population that had been doubling every two decades. The convention delegates who advocated a new form of government were wary of the role slavery would play in this new nation, but they were even more wary of offending Southern sentiments to the point that consensus at the convention would be endangered.
© 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 35 09-11-2014 09:14:34
36 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 37
# 153120 Cust: Cengage Au: Dautrich Pg. No. 36 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
Some delegates from the Northern states who had already voted in favor of banning slavery sought a similar emancipation of slaves in all the colonies by constitutional edict. Southern- ers hoping to protect their plantation economy, which depended on slave labor, wanted to prevent future Congresses from interfering with the institution of slavery and the importation of slaves. Moreover, even among Northerners there was disagreement on how emancipation should proceed: some favored outright freedom, whereas others argued for some form of colo- nization of the slaves, which would in effect ship them back to Africa. Many delegates feared that any extended discussion of slavery at the convention would become so divisive that it might bring the entire gathering to a standstill.
Southern delegates also wanted slaves to be counted equally with free people in determin- ing the apportionment of representatives; Northerners opposed such a scheme for represen- tation because it would give the Southern states more power, but the North did want slaves counted equally for purposes of apportioning taxes among the states. In an effort to forestall the convention’s collapse, the delegates crafted a series of compromises that amounted to mis- direction, and in some instances outright silence, on the issue of slavery.10 By the agreement known as the Three-Fifths Compromise, five slaves would be counted as the equivalent of
Three-Fifths Compromise: A compromise proposal in which five slaves would be counted as the equivalent of three free people for purposes of taxes and representation.
Figure 2.1 Concentration of Slavery (by County), Circa 1790
Source: Rendered based on “GIS for History” project at the University of Illinois at Chicago, http://gis.uchicago.edu/data.htm
0 Number of Slaves
25.317 50.634 © 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 36 09-11-2014 09:14:35
36 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 37
# 153120 Cust: Cengage Au: Dautrich Pg. No. 37 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
three “free persons” for purposes of taxes and representation. Delegates from Southern states also feared that a Congress dominated by representatives from more populous Northern states might take action against the slave trade. Most Northerners continued to favor gradual emancipation. Once again, neither side got exactly what it wanted. The new constitution said nothing about either preserving or outlawing slavery. Indeed, the only specific provision about slavery was a time limit on legislation banning slave importation: Congress was forbid- den from doing so for at least 20 years. In 1807, however, with the slave population steadily outgrowing demand, many Southerners allied with opponents of the slave trade to ban the importation of slaves. Not until the Civil War decades later would the conflict over slavery be finally resolved.
On September 17, 1787, after four months of compromises and negotiations, the 12 state del- egations present approved the final draft of the new constitution. By the terms of Article VII of the document, the new constitution was to become operative once ratified by 9 of the 13 states.
2.3 The New Constitution As a consequence of the many compromises in the draft constitution, few of the delegates were pleased with every aspect of the new document. Even James Madison, later heralded as the “Father of the Constitution” for his many contributions as a spokesman at the convention, had furiously opposed the Great Compromise; he hinted at one point that a majority of the states might be willing to form a union outside the convention if the compromise were ever approved, and he convinced the Virginia delegation to vote “no” when it came up for a formal vote.
Nonetheless, the central desire of most of the delegates to craft a new government frame- work did lead them to consensus on a set of guiding principles evident throughout the docu- ment. The following principles continue to guide politicians, lawyers, and scholars today as they study the many ambiguous provisions of the U.S. Constitution:
• Recognizing that calls for fairer representation of colonists’ interests lay at the heart of the Declaration of Independence, popular sovereignty was a guiding principle behind the new constitution. The document’s preamble beginning with “We the People” signi- fied the coming together of people, not states, for the purposes of creating a new govern- ment. Under the proposed constitution, no law could be passed without the approval of the House of Representatives, a “people’s house” composed of members apportioned by population and subject to reelection every two years. Of even greater significance, the delegates agreed that all revenue measures must originate in the House, an explicit af- firmation of the principle that there would be “no taxation without representation.”
• The delegates recognized the need for a separation of powers. The Founders drew upon the ideas of the French political philosopher Baron de Montesquieu, who had argued that when legislative, executive, and judicial power are not exercised by the same institu- tion, power cannot be so easily abused. Mindful of the British model in which Parliament combined legislative and executive authority, the drafters of the new constitution as- signed specific responsibilities and powers to each branch of the government— Congress (the legislative power), the president (the executive power), and the Supreme Court (the judicial power). In the new government, individuals were generally prohibited from serving in more than one branch of government at the same time. The vice president’s role as president of the Senate was a notable exception to this rule.
• While establishing separate institutions, the drafters of the new constitution also created a system of checks and balances to require that the branches of government would have to work together to formulate policy (see Figure 2.2). This system of “separate institu- tions sharing power” helped ensure that no one interest or faction could easily dominate the government. Through the exercise of presidential vetoes, Senate advice and consent, and judicial interpretations and other tools, each institution would have an opportunity to contend for influence.
separation of powers: The principle that each branch of government enjoys separate and independent powers and areas of responsibility.
checks and balances: A system of limits imposed by the Con- stitution that gives each branch of government the limited right to change or cancel the acts of other branches.
CompARE WITH YouR pEERS
for American Government
Access The Constitution Forum: Polling Activity—Raising the Debt Ceiling
53048_ch02_ptg01_hr_024-053.indd 37 09-11-2014 09:14:35
38 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 39
# 153120 Cust: Cengage Au: Dautrich Pg. No. 38 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
Figure 2.2 Checks and Balances in the U.S. Constitution
• Dividing sovereign powers between the states and the federal government—a system later termed federalism—is also a defining characteristic of the government framework estab- lished by the new constitution. Rather than entrusting all powers to a centralized govern- ment and essentially reducing the states to mere geographical subdivisions of the nation, the convention delegates divided powers between two levels of government: the states and the federal government. The distinction drawn between local concerns—controlled by state governments—and national concerns—controlled by the federal government—was
© 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 38 09-11-2014 09:14:37
38 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 39
# 153120 Cust: Cengage Au: Dautrich Pg. No. 39 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
as confusing then as it is today. But the delegates determined that such a division was necessary if they hoped to achieve any consensus. It would be politically impossible to convince the states to become mere geographic subdivisions of a larger political whole.
• Although united by the belief that the national government needed to be strengthened, the framers of the new constitution were products of a revolutionary generation that had seen governmental power abused. Thus, they were committed to a government of limited or enumerated powers. The new constitution spelled out the powers of the new federal government in detail, and it was assumed that the government’s authority did not ex- tend beyond those powers. By rejecting a government of unlimited discretionary power, James Madison argued, individual rights, including those “inalienable rights” cited in the Declaration of Independence, would be protected from the arbitrary exercise of authority.
• Finally, some delegates believed that the new constitution should be a “living” document; that is, it should have some measure of flexibility in order to meet the changing demands placed on it over time. Perhaps the most frustrating aspect of the Articles of Confed- eration was the near impossibility of any sort of modification: because any change to the Articles required the unanimous consent of the states, even the most popular reform pro- posals stood little chance of being implemented. Thus, the Framers decided that the new constitution would go into effect when it had been ratified by 9 of the 13 states. Further- more, once ratified, the constitution could be amended by a two-thirds vote of each house of Congress (subject to subsequent ratification by three-fourths of the state legislatures).
2.4 The Ratification Battle Federalists versus Anti-Federalists
Once Congress submitted the new constitution to the states for approval, battle lines were formed between the Federalists, who supported ratification of the new document, and the Anti-Federalists, who opposed it. From the outset, the Federalists enjoyed a number of struc- tural and tactical advantages in this conflict:
• Nonunanimous consent. The rules of ratification for the new constitution, requiring approval of just 9 of the 13 states, were meant to ease the process of adopting the new document. The delegates understood that once the constitution had been approved, it would be difficult for even the most stubborn of state holdouts to exist as an independent nation surrounded by this formidable new national entity, the United States of America.
• Special “ratifying conventions.” The delegates realized that whatever form the new constitution might take, state legislatures would have the most to lose from an abandon- ment of the Articles. Thus they decided that the constitution would be sent for ratifica- tion not to state legislatures, but instead to special state ratifying conventions that would be more likely to approve it.
• The rule of secrecy. The Constitutional Convention’s agreed-upon rule of secrecy, which forbade publication or discussion of the day-to-day proceedings of the convention, fol- lowed the precedent established in colonial assemblies and the First Continental Con- gress, where it was thought that members might speak more freely and openly if their remarks were not subject to daily scrutiny by the public at large. In the fall of 1787, the rule of secrecy also gave the Federalists on the inside a distinct advantage over outside opponents, who had little knowledge of the new document’s provisions until publicized. Because the number of convention delegates who supported the new constitution far exceeded the number of delegates opposed, the rule of secrecy gave the Federalists a distinct advantage. As it turned out, five state ratifying conventions approved the new constitution within four months of the convention’s formal conclusion, just as Anti- Federalist forces were collecting their strength for the battle ahead.
• Conventions held in the winter limited rural participation. Winter was approach- ing just as the fight over the new constitution was being launched. This timing gave
Federalists: Those who sup- ported ratification of the proposed constitution of the United States between 1787 and 1789.
Anti-Federalists: Those who opposed ratification of the proposed constitution of the United States between 1787 and 1789.
enumerated powers: Express powers explicitly granted by the Constitution, such as the taxing power specifically granted to Congress.
53048_ch02_ptg01_hr_024-053.indd 39 09-11-2014 09:14:37
40 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 41
# 153120 Cust: Cengage Au: Dautrich Pg. No. 40 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
the Federalists another advantage, especially in the critical ratification battlegrounds of Massachusetts, New Hampshire, and New York. It would be difficult for rural dwellers— mostly poor farmers resistant to a strong central government and thus opposed to the new constitution—to attend the ratification conventions if they were held in the dead of winter. Supporters of the new constitution successfully pressed for the ratifying conven- tions to be held as soon as possible. And of the six states that held such conventions over the winter, all voted to ratify by substantial margins.
The Federalist Papers
Between the fall of 1787 and the summer of 1788, the Federalists launched an aggressive media campaign that was unusually well organized for its time. James Madison, Alexander Hamilton, and John Jay wrote 77 essays explaining and defending the new constitution and urging its rati- fication. Signed under the name “Publius,” the essays were printed in New York newspapers and magazines. These essays—along with eight others by the same men—were then collected, printed, and published in book form under the title The Federalist.11 The essays allayed fears and extolled the benefits of the new constitution by emphasizing the inadequacy of the Articles of Confedera- tion and the need for a strong government. Today these essays are considered classic works of political philosophy. The following are among the most frequently cited Federalist Papers:
• Federalist No. 10. In Madison’s first offering in the Federalist Papers, he analyzes the nature, causes, and effects of factions, by which he meant groups of people motivated by a common economic and/or political interest. Noting that such factions are both the product and price of liberty, Madison argued that by extending the sphere in which they can act, “you make it less probable that a majority of the whole will have a common mo- tive to invade the rights of other citizens.” Political theorists often cite Federalist No. 10 as justification for pluralist theory—the idea that competition among groups for power produces the best approximation of overall public good.
• Federalist No. 15. Hamilton launched his attack on the Articles of Confederation in this essay. Specifically, he pointed to the practical impossibility of engaging in concerted ac- tion when each of the 13 states retained virtual power to govern.
• Federalist No. 46. In this essay, Madison defended the system of federalism set up by the new constitution. He contended that the system allowed the states sufficient capacity to resist the “ambitious encroachments of the federal government.”
• Federalist No. 51. In perhaps the most influential of the essays, Madison described how the new constitution would prevent the government from abusing its citizens. His argu- ment is that the “multiplicity of interests” that influences so many different parts of the government would guarantee the security of individual rights. Because the federal sys- tem of government divides the government into so many parts (federal versus state; leg- islative versus executive versus judicial branches; and so on), “the rights of the individual, or of the minority, will be in little danger from interested combinations of the majority.”
• Federalist No. 69. Hamilton in this essay defined the “real character of the executive,” which, unlike the king of Great Britain, is accountable to the other branches of govern- ment and to the people.
• Federalist No. 70. In this essay, Hamilton presented his views on executive power, which had tempered considerably since the convention, when he advocated an executive for life. Still, Hamilton argued for a unitary, one-person executive to play a critical role as a check on the legislative process (that is, by exercising vetoes), as well as in the process of negotiating treaties and conducting war. According to Hamilton, “energy in the execu- tive is a leading character in the definition of good government”; by contrast, “the spe- cies of security” sought for by those who advocate a plural executive is “unattainable.”
• Federalist No. 78. In this essay—often cited in U.S. Supreme Court opinions— Hamilton argues that the judiciary would be the weakest of the three branches because it has “neither FORCE nor WILL, but merely judgment.” Because the Court depends
Federalist Papers: A series of articles authored by Alexander Hamilton, James Madison, and John Jay, which argued in favor of ratifying the proposed con- stitution of the United States; the Federalist Papers outlined the philosophy and motivation of the document.
53048_ch02_ptg01_hr_024-053.indd 40 09-11-2014 09:14:37
40 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 41
# 153120 Cust: Cengage Au: Dautrich Pg. No. 41 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
on the other branches to uphold that judgment, Hamilton called it “the least danger- ous branch.”
In late 1787 and early 1788, Anti-Federalists countered the Federalist Papers with a media campaign of their own.12 In letters written under the pseudonyms “Brutus” and “The Federal Farmer” and published by newspapers throughout the colonies, the Anti-Federalists claimed that they were invoking a cause more consistent with that of the revolution—the cause of freedom from government tyranny. For them, the new national government’s power to impose internal taxes on the states amounted to a revival of the British system of internal taxation. Per- haps the Anti-Federalists’ most effective criticism was that the new constitution lacked a bill of rights that explicitly protected citizens’ individual rights. They rejected Madison’s contention in Federalist No. 51 that limitations on the central government provided those protections.
Ratification ultimately succeeded, but by a somewhat narrow margin (see Table 2.3). Of the first five states to ratify, four (Delaware, New Jersey, Georgia, and Connecticut) did so with little or no opposition, whereas Pennsylvania did so only after a bitter conflict at its ratify- ing convention. Massachusetts became the sixth state to ratify when proponents of the new constitution swung the convention narrowly in their favor only by promising to push for a bill of rights after ratification. By June, three more states (Maryland, South Carolina, and New Hampshire) had voted to ratify, providing the critical threshold of nine states required under the new constitution. Still, the Federalists worried that without ratification by the major states of New York and Virginia, the new union would not succeed.
Opposition in Virginia was formidable, with Patrick Henry leading the Anti-Federalist forces against James Madison and the Federalists.13 Eventually Madison gained the upper hand with an assist from George Washington, whose eminent stature helped capture numerous
State Vote Date of Ratification
Delaware 30–0 December 7, 1787
Pennsylvania 43–23 December 12, 1787
New Jersey 38–0 December 18, 1787
Georgia 25–0 January 2, 1788
Connecticut 128–40 January 9, 1788
Massachusetts 187–168 February 16, 1788
Maryland 63–11 April 26, 1788
South Carolina 149–73 May 23, 1788
New Hampshire 57–46 June 21, 1788
Virginia 89–79 June 25, 1788
New York 30–27 June 26, 1788
North Carolina* 194–77 November 21, 1789
Rhode Island 34–32 May 29, 1790
Table 2.3 Ratifying the Constitution
*Despite strong Federalist sentiment at the convention, North Carolina withheld its vote in 1788 until a draft bill of rights was formally introduced. The submission by Congress of 12 proposed amendments to the states on September 25, 1789, led North Carolina to hold a second ratifying convention the following November.
© 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 41 09-11-2014 09:14:37
42 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 43
# 153120 Cust: Cengage Au: Dautrich Pg. No. 42 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
2 0 1 2
1 9 0 5
The Continuing Call to the Federalist papers
THe MOre THey sTay THe saMe
THe MOre THiNgs CHaNge,
T he Federalist Papers had a significant impact on the birth of the new nation. The essays argued per- suasively that the Articles of Confederation were
inadequate. Many scholars today attribute the narrow mar- gin in favor of ratification of the new constitution at New York’s ratification convention to the sophisticated media campaign waged by the Federalists, especially through the Federalist Papers.
In 1905, the Supreme Court’s controversial decision in Lochner v. New York, which invalidated a New York State health regulation restricting the hours that bakers could be exposed to flour dust, set off a furious political debate about the role government should play in a newly industrialized society. Advocates on both sides of the de- bate repeatedly cited the Federalist Papers to bolster their arguments. Those who supported government regulation argued that it was not the job of courts to disagree with the decisions of legislatures on such public-interest is- sues; even if factions and interest groups had produced such legislation, they cited Federalist No. 10 to claim that the corrupting spirit of “factions” distinguished de- mocracy from true republics. Opponents of government regulations countered that Madison’s preference for more factions was simply his way of reaching toward an ideal politics in which all of these factions would cancel themselves out—by contrast, they argued that factions remained heavily influential in state legislatures. In sup- port of the Court’s ruling, they cited Federalist No. 78, in which Hamilton argued that “the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.” Only a sudden switch by the Supreme Court to stop interfering with in- dustrial regulations in 1937 saved the nation from a con- stitutional crisis fueled in part by dramatically contrasting readings of the Federalist Papers.
By 2012, same-sex marriage had become a reality in an increasing number of states. Up through March of that year, eight states in all had passed laws recogniz- ing same-sex marriage; meanwhile, a handful of states were actively considering joining that list, including New Jersey, whose legislature passed a same-sex marriage
recognition law in mid-February. The Republican New Jersey Governor Chris Christie, who would eventually become a much touted contender for the White House in 2016, had previously indicated he would veto that bill if given the chance. Christie followed through on that promise on February 17, 2012, but the debate over Christie’s actions raged on as the governor de- fended his action on talk shows and before the public as a whole. Knowing that a direct vote of the population on same-sex marriage was likely to support his view, Christie called for voters to petition for a constitutional amendment that would change the definition of mar- riage. Critics charged that by asking for a popular vote and ignoring the vote of the people’s representatives, Christie ran up against the purpose of the U.S. Constitu- tion as outlined by Federalist No. 51, in which Madison described the ideals of republican government over a democratic one as the most crucial “political safeguard against tyrannical majorities . . . if a majority be united by a common interest, the rights of the minority will be insecure.” Christie’s call for a popular vote clearly placed him on the side of democracy; the Federalist Pa- pers offered Christie and others a reminder that many of the Constitution’s founders never intended it to promote the interests of a majority over the minority. Finally, in October of 2013, a trial court invalidated the state’s re- striction of marriage to persons of different sexes, which effectively authorized the issuance of marriage licenses to same-sex couples in New Jersey.
For Critical Thinking and Discussion 1. Are calls to the Federalist Papers still persuasive in
the modern age?
2. Given that the Constitution has been amended 27 times since it was ratified, should excerpts from the Federalist Papers (written to defend the new constitution prior to those amendments being rati- fied) still carry the same degree of authority?
53048_ch02_ptg01_hr_024-053.indd 42 09-11-2014 09:14:40
42 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 43
# 153120 Cust: Cengage Au: Dautrich Pg. No. 43 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
votes for the Federalists. Madison also promised to support adding a bill of rights to the new constitution. Then, Alexander Hamilton and John Jay capitalized on the positive news from Virginia to secure victory at the New York ratifying convention. With more than the required nine states—including the crucial states of New York and Virginia—the Congress did not wait for the votes from North Carolina or Rhode Island; on July 2, 1788, it appointed a committee to prepare for the new government.
A Bill of Rights
Seven of the state constitutions created during the Revolutionary War featured a statement of individual rights in some form. The Virginia Declaration of Rights of 1776, for example, had borrowed (from John Locke) its grounding of individual rights in a conception of natural law and social contract: “All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.” Later, during the battle over ratification, five state ratifying conventions had stressed the need for amendments to the proposed constitution in the form of a bill of rights, which would expressly protect fundamental rights against encroachment by the national government.14
Still, not all Federalists saw the need for a federal bill of rights. Madison, for one, believed a bill of rights was unnecessary because the central government held only those powers enumerated in the Constitution. He explained: “The rights in question are reserved by the manner in which the federal powers are granted . . . the limited powers of the federal government and the jealousy of the subordinate governments afford a security which has not existed in the case of the state governments, and exists in no other.” Madison was also concerned about the dangers of trying to enumerate all important rights: “There is great reason to fear that a positive declaration of some of the most essential rights could not be obtained,” leaving some essential rights omitted for the future. Hamilton underscored this sentiment in Federalist No. 84, arguing that such a list of rights might invite governmental attempts to exercise power over those rights not included in the list.
Among the most ardent supporters of adding a bill of rights to the Constitution was Thomas Jefferson, who warned about the dangers of abuses of power.15 From his distant vantage point in France, where he continued to serve as an American minister, Jefferson was in the dark about the new constitution until November 1787. Then, in a December 20, 1787, letter to his friend and political protégé from Virginia, James Madison, Jefferson wrote: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Although recognizing Madison’s fears of omissions as legitimate, Jefferson continued to argue the point. In a subsequent letter dated March 15, 1789, Jefferson argued that “half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
In the end Jefferson’s arguments prevailed, and Madison (by this time a congressman from Virginia) became a principal sponsor of a bill of rights in the first Congress. Introducing the bill in the House of Representatives, he declared: “They will be an impenetrable bulwark against every assumption of power in the legislative or executive.” On September 9, 1789, the House of Representatives voted to submit a list of 12 amendments to the states; 10 of these were ratified by the required nine states by December 15, 1791, and compose today’s Bill of Rights.
Among the rights protected by the Bill of Rights are the rights of free religious exercise, free speech, free press, and assembly (First Amendment); rights against search and seizure with- out a warrant stating “probable cause” (Fourth Amendment); and rights of due process and no self-incrimination (Fifth Amendment). The two amendments not ratified in 1791 did not relate to individual rights at all. They were (1) a prohibition on salary increases for legislators taking effect prior to the next congressional election (in 1992—more than two hundred years later—this became the Twenty-seventh Amendment); and (2) a provision defining the rules for determining the number of members of the House of Representatives.
amendments: Modifications or additions to the U.S. Constitu- tion passed in accordance with the amendment procedures laid out in Article V.
Bill of Rights: The first 10 amendments to the U.S. Constitution, which protect var- ious rights of the people against the new federal government.
53048_ch02_ptg01_hr_024-053.indd 43 09-11-2014 09:14:40
44 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 45
# 153120 Cust: Cengage Au: Dautrich Pg. No. 44 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
2.5 Changing the Constitution The Formal Amendment Process
Although political circumstances dictated that the Bill of Rights be passed in a relatively speedy fashion, future proposed amendments would not have it so easy. In crafting the rules for amending the new constitution, the Framers sought to balance two competing interests: (1) the need to protect the Constitution from short-lived or temporary passions by making amendments exceedingly difficult to pass; and (2) sufficient flexibility to allow for amend- ments to be added when the needs of the nation demanded change. Their determination to strike such a balance was shaped by their experience in dealing with the Articles of Confedera- tion, whose “unanimous consent of states” rule had left the document immune from even the most necessary of reforms.
As shown in Figure 2.3, Article V of the Constitution specifies two ways in which amend- ments can be proposed and two methods of ratification. Congress may propose an amend- ment by a two-thirds vote of both houses; alternatively, two-thirds of the state legislatures may apply to Congress to call a special national convention for proposing amendments. Amend- ments take effect when ratified either by a vote of three-fourths of the state legislatures or by special ratifying conventions held in three-fourths of the states. To date, all 27 amendments (including the Bill of Rights) have been proposed by Congress, and all but one (the Twenty- first Amendment) have been ratified by the state legislatures.
No national convention has ever been called for the purpose of proposing amendments. Indeed, the closest the states have ever come to applying to Congress for such an event occurred in 1967, when 33 states (just one short of the required number) petitioned Congress to call a convention that would propose an amendment reversing the 1964 Supreme Court ruling requiring that both houses of each state legislature be apportioned according to population. Given the ambiguity of Article V, numerous questions have been raised about the form such a convention would take.
Figure 2.3 How an Amendment Gets Proposed and Ratified
Methods of Proposing Amendments
Methods of Ratifying Amendments
Two-thirds vote of both houses of
Congress
Congress, upon requests from two-
thirds of state legislatures, calls a
national constitutional convention to propose
amendments (never used to date)
By special ratifying conventions in three- fourths of the states
Common method (used twenty-six
times)
Never used
By legislatures in three-fourths of the
states
Used once (Twenty-first Amendment)
Never used
© 2
01 6
Ce ng
ag e
Le ar
ni ng
® .
53048_ch02_ptg01_hr_024-053.indd 44 09-11-2014 09:14:40
44 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 45
# 153120 Cust: Cengage Au: Dautrich Pg. No. 45 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
How would delegates be chosen? When Congress proposed the Twenty-first Amendment, it left it to each state to determine the manner in which delegates to the ratifying conventions would be chosen. How would the convention be run? Could a convention go beyond the limitations placed on it by Congress? What would happen if a convention went far afield and proposed an entirely new constitution, just as the convention in 1787 did? Congress has to date refused to pass laws dictating the terms of future conventions, in part because it has not wanted to encourage such an event.16
Critics of the amendment process charge that it is undemocratic, as today just 13 of the 50 states can block amendments desired by a large majority. Additionally, amendments, especially those ratified by special conventions, may be adopted even if they lack widespread popular support.
Although 27 amendments have been ratified since 1789, only 17 of those were ratified after 1791 (see Table 2.4 on next page). More than 5,000 amendments have been introduced in Congress since that time, but only 33 have been formally proposed by Congress. Today, as shown in Figure 2.4, different amendments garner varying levels of support. Among the pro- posed amendments that failed in the ratification process are the following:
• An amendment that would withdraw citizenship from any person who has accepted a title of nobility or who has received (without the consent of Congress) an office or salary from a foreign power (proposed in 1810)
Figure 2.4 Popular Support for Possible Constitutional Amendments
Source: Aspen Ideas poll, based on 1,000 online interviews conducted June 18–20, 2010.
Americans are apparently open to making at least a few changes to all branches of government:
Roadmap of Possible Constitutional Changes
Abolish the electoral college
(74%)
Most willing to change
Least willing to change
Mandatory retirement age
for the Congress (66%)
Mandatory retirement age
for the President (51%)
DC should have representation
(49%)
Allow President to serve a 3rd
non-consecutive term (42%)
States with a larger pop.
should have more reps (40%)
Extend house terms to four years (40%)
Supreme Court Justices should
be elected (51%)
Do away with the filibuster (53%)
Mandatory retirement age for
justices (69%)
Limit justices’ term in office
(66%)
53048_ch02_ptg01_hr_024-053.indd 45 09-11-2014 09:14:41
46 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 47
# 153120 Cust: Cengage Au: Dautrich Pg. No. 46 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
Amendment Subject of Amendment Date Proposed Date Ratified Length
Bill of Rights
First Free speech, press, religion, assembly Sept. 25, 1789 Dec. 15, 1791 2+ years
Second Right to bear arms
Third No quartering of troops in homes
Fourth No unreasonable searches/seizures
Fifth Right to due process, grand jury, no double jeopardy, self-incrimination
Sixth Right to speedy and public trial, counsel
Seventh Right to trial by jury in civil cases
Eighth No excessive bail, fines, cruel/unusual punishment
Ninth Rights not enumerated retained by people
Tenth Powers not delegated to Congress or prohibited to states belong to states or people
Subsequent Amendments
Eleventh No federal cases between state, citizen of other state
March 5, 1794 Jan. 8, 1798 3+ years
Twelfth Modification of electoral college rules Dec. 12, 1803 July 16, 1787 9+ months
Thirteenth Ban on slavery Feb. 1, 1865 Dec. 18, 1865 10+ months
Fourteenth States can’t deprive right to due process, equal protection, privileges and immunities
June 16, 1866 July 28, 1868 2+ years
Fifteenth Right to vote can’t be denied by race Feb. 27, 1869 March 30, 1870 1+ years
Sixteenth Congress can levy individual income taxes July 12, 1909 Feb. 25, 1913 3+ years
Seventeenth Direct election of senators May 16, 1912 May 31, 1913 1+ years
Eighteenth Prohibition of liquors Dec. 18, 1917 Jan. 29, 1919 1+ years
Nineteenth Women’s right to vote June 4, 1919 Aug. 26, 1920 1+ years
Twentieth Dates for inauguration, Congress’s session March 2, 1932 Feb. 6, 1933 1+ months
Twenty-first Repeal of prohibition Feb. 20, 1933 Dec. 5, 1933 9+ months
Twenty-second Presidential term limits March 24, 1947 Feb. 26, 1951 3+ years
Twenty-third D.C. residents’ vote for president June 16, 1960 March 29, 1961 9+ months
Twenty-fourth Ban on poll taxes Aug. 27, 1962 Jan. 23, 1964 1+ years
Twenty-fifth Appointment of new vice president, presidential incompetence
July 6, 1965 Feb. 10, 1967 1+ years
Twenty-sixth Eighteen-year-olds’ right to vote March 23, 1971 July 1, 1971 3+ months
Twenty-seventh Congressional pay raises effective only after election
Sept. 25, 1789 May 7, 1992 202+ years
Table 2.4 Amendments, Date of Ratification, and Length of Ratification Process
Ba se
d on
P au
l M ur
ph y,
‘B ac
kg ro
un d
of th
e Bi
ll of
R ig
ht s’
(N ew
Y or
k: T
ay lo
r & F
ra nc
is , 1
99 0)
53048_ch02_ptg01_hr_024-053.indd 46 09-11-2014 09:14:42
46 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 47
# 153120 Cust: Cengage Au: Dautrich Pg. No. 47 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
• An amendment proposed on the eve of the Civil War in 1861 that would have prohibited further interference by the federal government with slavery in any state
• An amendment that would have prohibited labor by young children (proposed in 1924)
The Equal Rights Amendment (ERA) proposed by Congress in 1972 also came up short during the ratification process, after years of effort to secure its passage. Although the courts have consistently held that ratification of an amendment must take place within a “reasonable time,” it has been left up to Congress to determine what constitutes a reason- able time. When drafting the proposed Eighteenth Amendment in 1917, Congress placed into the text of the amendment a seven-year limit on ratification and continued to do so with subsequent amend- ments it proposed up until 1960. That year, when Congress proposed the Twenty-third Amendment giving residents of the District of Columbia the right to vote in presidential elections, it began the practice of setting time limits in the resolution accompanying submission of the amendment to Congress, rather than in the formal part of the amendment. As a con- sequence, when it appeared that the ERA would not be ratified, proponents of the amendment managed to get the ratification period extended to June 30, 1982 (an additional three years and three months beyond the original deadline), by a majority vote of both houses. Despite the extension, however, the proposed amendment died when it failed to win the approval of more than 35 state legislatures, 3 short of the 38 neces- sary for passage.
The “reasonable time” requirement for ratification of an amendment reached an extreme with the Twenty-seventh Amendment (forbidding congressional pay raises from taking ef- fect until an intervening election in the House of Representatives has occurred). Originally proposed in 1789 as part of the Bill of Rights, it was finally ratified in 1992, just over 202 years later. (See the “From Your Perspective” box on page 49 for more detailed discussion of what occurred.)
Informal Processes of Change
After the Constitution and Bill of Rights were ratified, there remained the difficult task of interpreting those documents for use by the different branches of government. Among the Framers, Alexander Hamilton was perhaps most attuned to the danger that Anti-Federalists and other opponents of the Constitution might attempt to overturn the convention’s carefully crafted compromises so many years later by judicial fiat. Certainly most of the Constitution’s provisions were vague enough that they allowed discretion for maneuvering by the generation that interprets them—but how much discretion was justified in the process of constitutional interpretation?
As it turned out, the Supreme Court under Chief Justice John Marshall was the first to put its own lasting imprint on the Constitution. Marshall, who hailed from Virginia, served as the chief justice of the United States17 from 1801 until his death in 1835. Marshall believed in a loose construction (or interpretation) of the Constitution, meaning that under his leadership, many of the Constitution’s provisions enjoyed broad and quite open-ended meanings. Thus, for example, Article I, Section 8, Clause 18 empowered Congress “to make all laws which shall be necessary and proper for carrying into execution” any of the powers specifically listed in the Constitution. Marshall’s loose construction of that provision gave the federal government con- siderable implied powers (those not explicitly stated) to regulate the economy. For example,
loose construction: Constitu- tional interpretation that gives constitutional provisions broad and open-ended meanings.
Demonstrators (including Rep. Carolyn Maloney [D-NY], at the podium) urging reintroduction of the ERA as an amendment to the Constitution.
M ic
ha el
K le
in fe
ld /U
PI /L
an do
v
CoNNECT WITH YouR CLASSmATES
for American Government
Access The Constitution Forum: Discussion—The Constitution and Law Making
53048_ch02_ptg01_hr_024-053.indd 47 09-11-2014 09:14:45
48 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 49
# 153120 Cust: Cengage Au: Dautrich Pg. No. 48 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
For Critical Thinking and Discussion 1. Can Congress be expected to determine all the
details of federal law, such as the exact emission standards for cars, or (as in this case) the exact sentence that applies to every federal crime?
2. Do we want Congress focusing on the big questions of policy, while leaving these details to unelected officials within the government?
3. How strictly should we enforce the separation of powers?
THROUGH THE YEARS: suPreMe COurT DeCisiONs iMPaCTiNg Our LiVes
Mistretta v. United States (1989) One of the relics of nineteenth-century constitutional law that remains formally on the books is the so-called “non-delegation doctrine,” which prohibits Congress, being vested with “all legislative powers” by Article I, from delegating that power to another branch. In real- ity, if the separation of powers was to be enforced so strictly, our entire welfare state (which depends on hundreds of agencies issuing legal rules and regula- tions that affect people’s rights) might well disappear. Yet even if this aspect of the separation of powers is so rarely enforced in the context of agencies, what about in the courts? In 1984 Congress passed the Sentencing Reform Act, which created an agency within the judi- cial branch, the U.S. Sentencing Commission, charged with issuing binding sentencing guidelines to be fol- lowed by federal courts. John Mistretta, who received an 18-month sentence for cocaine distribution under these new guidelines, challenged the sentence as a violation of the separation of powers. Can Congress, which defines sentences for federal crimes, delegate this sentencing power to a judicial agency? In Mistretta v. United States,
the U.S. Supreme Court by an 8–1 decision said “yes,” holding that the delegation was sufficiently detailed and specific enough to meet constitutional standards. Today if you or friends ever find yourselves in federal court, do not be surprised if the judge you are looking for to provide mercy actually has his or her hands tied by rules issued by the U.S. Sentencing Commission.
in the 1819 case of McCulloch v. Maryland,18 the Marshall Court ruled that Congress had the power to create a national bank, even though the Constitution said nothing explicitly about such a power. The Court determined that a national bank was “necessary and proper” to assist in regulating commerce or raising armies. This philosophy of loose constitutional interpreta- tion underlies the concept of a “living Constitution,” one that is adaptable to changing times and conditions.
Thomas Jefferson, James Madison, and many others viewed the powers of the central gov- ernment more narrowly. They favored a strict construction, arguing that the government possessed only those powers explicitly stated in the Constitution. Thus, although Article I, Section 8, Clause 3 gave Congress the power to regulate interstate commerce, it could not do so by creating a national bank or utilizing any other means not specifically mentioned in the Constitution. They supported a “fixed Constitution,” one that could be changed only by the formal amendment process, not by congressional action or judicial ruling.
The tension between advocates of strict and loose constructions of the Constitution con- tinues to this day. The late Robert Bork, a former Yale law professor and failed Supreme Court nominee, argued that overly loose interpretations of the Constitution are outside the Court’s proper task. In particular, Bork wrote, the Supreme Court has “simply abandoned” the Con- stitution by refusing to enforce limits on the subjects that come within congressional reach.19 Another strict constructionist, Justice Antonin Scalia, rejects the notion of constitutional stan- dards evolving over time; in 2008 Scalia told one reporter that while change in a society can
strict construction: Constitu- tional interpretation that limits the government to only those powers explicitly stated in the Constitution.
53048_ch02_ptg01_hr_024-053.indd 48 09-11-2014 09:14:45
48 Chapter 2 The Founding and the Constitution Chapter 2 The Founding and the Constitution 49
# 153120 Cust: Cengage Au: Dautrich Pg. No. 49 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
FrOM yOur PersPeCTiVe
one Student’s Term paper proves That the Constitution Is Indeed a “Living Document”?
C ollege students may be forgiven for assuming that classroom assignments that invite them to pro- pose constitutional amendments are strictly theo-
retical exercises. Yet in the case of one University of Texas student, such an assignment on constitutional change be- came much more than theoretical. Gregory Watson chose as the topic for his research a long-forgotten amendment
to forbid congressional pay raises from taking effect un- til an intervening election in the House of Representa- tives had occurred. Originally proposed in 1789 as part of the Bill of Rights, the amendment was finally ratified 203 years later, thanks largely to Watson. The sophomore had discovered the amendment while doing research for a paper on American government. Watson’s final paper— in which he argued that the amendment was still viable for ratification—garnered a mere “C” from his professor. But Watson continued his quest to secure ratification of the amendment. Tapping into the resentment of citizens over various instances in which members of Congress had quietly passed pay raises for themselves without call- ing attention to their actions, Watson joined forces with several state lawmakers to get the required number of states to ratify the provision. Their efforts succeeded, and the Twenty-seventh Amendment was eventually ratified in May 1992. Although Watson’s grade from a decade ear- lier remained unchanged, he at least had the satisfaction of knowing that he had made history—literally.
For Critical Thinking and Discussion 1. What amendments to the Constitution would you
like to see implemented?
2. Would you be willing to sacrifice your own time, energy, and resources to organize interest-group activities on an amendment’s behalf?
be reflected in legislation, “society doesn’t change through a Constitution.”20 In accordance with this philosophy, the more conservative Supreme Court of the late 1990s (which included Scalia) struck down federal statutes regulating guns in the schools and domestic violence, on the theory that such regulations were not grounded in any specifically enumerated power of Congress, such as the power to regulate interstate commerce.
This strict-construction approach contrasts markedly with the approach advocated by Pro- fessors Lawrence Tribe21 and John Hart Ely,22 as well as former Supreme Court Justice William Brennan, who argued for a loose or more flexible interpretation of the Constitution. Advocates of a loose construction view the document as evolving with the times. In the 1960s and 1970s,
© V
ad im
S ad
ov sk
i/ Sh
ut te
rs to
ck .c
om
53048_ch02_ptg01_hr_024-053.indd 49 09-11-2014 09:15:13
# 153120 Cust: Cengage Au: Dautrich Pg. No. 50 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
50 Chapter 2 The Founding and the Constitution
the Supreme Court (with Brennan presiding) utilized a loose-construction approach to inter- pret congressional power more broadly to include the power to create civil rights legislation and federal criminal laws.
With so few amendments proposed and ratified during the nation’s history, students of American politics may wonder how a Constitution written in 1787 has developed to meet the needs of a changing nation. In truth, an informal constitutional convention occurs on a fre- quent basis in the American political system. Congress, the president, and the courts engage in constitutional interpretation every day through their respective activities, both official and unofficial. Thus the Constitution has not been a straitjacket at all—rather, its elegant vagueness has opened it up to a variety of interpretations.
Much of the rise in presidential power during the twentieth century occurred in the absence of any formal amendments conferring new powers on the chief executive; the president of the United States reacted to circumstances facing the executive office by assuming greater authority over foreign and domestic policymaking, and the other branches of government deferred to the president in many such matters. With its ruling in Marbury v. Madison (1803),23 the Supreme Court asserted its right of judicial review, that is, its authority to review acts of Congress for their constitutionality and void those that the Court determines are contrary to the Constitution. As part of its decision in McCulloch v. Maryland (1819), the Court ruled that when state and federal powers collide, federal powers take precedence. With some notable exceptions, the other branches of the federal government and state courts have more or less acquiesced to such exercises of power.
* * *
When the states in 1791 ratified the Bill of Rights, citizens must have marveled at the flex- ibility of the new U.S. Constitution. After all, it had been amended 10 times in just two years! And yet the Constitution has proven remarkably resistant to change since then, incorporating only 17 additional amendments over the following two centuries. How has the federal Consti- tution survived so long, and in nearly the same form as the original document? The demands of modern government, which manages an advanced welfare state that serves the needs of hundreds of millions of Americans, press the Constitution into service even when traditional rules of constitutional interpretation would seem to offer an insurmountable obstacle. Advo- cates of the New Deal were undaunted by the strictures of the “non-delegation doctrine,” and they stretched the Constitution’s language to advance the modern welfare state; supporters of President Obama’s individual health care mandate similarly pressed ahead, confident that more traditional constitutional principles would not stand in the way if the measures proved popular. The calculus is straightforward: The so-called “higher law” found in the Constitution must ultimately defer to the same public that vests it with that supreme authority in the first place.
2.1 The Beginnings of a New Nation • The American Revolution arose a decade after Britain’s victory in the French and Indian War; to pay off its significant war
debts, Britain imposed numerous regulatory measures on the colonies, which generated outrage, protests, and eventually armed resistance from the colonists.
• First established during the American revolutionary war, the Articles of Confederation created a “league of friendship” among the 13 states by vesting them with equal authority in a weak government with only limited powers to raise revenue and regulate commerce. The weakness of the Articles hampered early American foreign policy; its weak Congress proved unable to stamp out political unrest throughout the states.
suMMary: PuTTiNg iT aLL TOgeTHer
53048_ch02_ptg01_hr_024-053.indd 50 09-11-2014 09:15:13
# 153120 Cust: Cengage Au: Dautrich Pg. No. 51 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
2.2 The Constitutional Convention • In 1787 a Constitutional Convention of delegates from 12 states considered both the “Virginia Plan,” which favored larger,
more populous states and a “New Jersey Plan” based on the principle of equal representation of the states. The Convention ultimately accepted the “Connecticut Compromise” and its bicameral legislature featuring a House of Representatives apportioned by population and a Senate allotting equal power to each state. The delegates sidestepped the slavery issue by settling on the “Three-Fifths Compromise” (counting five slaves as three people for purposes of taxes and representation) and by deferring a ban on slave importation for at least 20 years.
2.3 The New Constitution • The new constitution combined features of popular sovereignty, separation of powers, and checks and balances with a
commitment to a system of “federalism,” which divides sovereignty between state and federal governments.
2.4 The Ratification Battle • The battle over ratification was waged between the Federalists who supported the new constitution and the Anti-
Federalists who opposed it. In advocating the merits of the document, Federalists benefitted from the convention’s rule of secrecy and the rule requiring the approval of just 9 of 13 state ratifying conventions for ratifications.
• Additionally, Federalists employed a well-crafted media campaign in support of ratification; this included the anonymous publication of the Federalist Papers in newspapers justifying various provisions of the new constitution.
• Several state ratifying conventions insisted that the new government add a bill of rights to the Constitution; James Madison, the “father of the Constitution,” was initially reluctant to propose such a bill for fear that it might omit important rights, but eventually he sponsored a new Bill of Rights in the first Congress.
2.5 Changing the Constitution • Article V of the Constitution makes it exceedingly difficult to amend the document. Since the Bill of Rights was ratified
in 1791, all but one of the 17 amendments that followed resulted from a two-step process: (1) two-thirds support of both houses of Congress, followed by (2) ratification by three-fourths of the state legislatures. (The Twenty-first Amendment was ratified by three-fourths of special state ratifying conventions). To date, a national constitutional convention (also authorized by Article V) has never been held.
• Informal constitutional change often occurs through U.S. Supreme Court interpretation of the document’s text. The Supreme Court under Chief Justice John Marshall favored a loose construction of several provisions, giving the federal government considerable implied powers; Thomas Jefferson and Jeffersonian Republicans favored a stricter construction of the Constitution’s provisions.
amendments (p. 43) Anti-Federalists (p. 39) Articles of Confederation (p. 31) Bill of Rights (p. 43) checks and balances (p. 37) Constitutional Convention (p. 33)
Declaration of Independence (p. 30) enumerated powers (p. 39) Federalist Papers (p. 40) Federalists (p. 39) Great Compromise (p. 34) loose construction (p. 47)
New Jersey Plan (p. 34) separation of powers (p. 37) Shays’s Rebellion (p. 33) strict construction (p. 48) Three-Fifths Compromise (p. 36) Virginia Plan (p. 34)
Key TerMs
Chapter 2 The Founding and the Constitution 51
53048_ch02_ptg01_hr_024-053.indd 51 09-11-2014 09:15:13
# 153120 Cust: Cengage Au: Dautrich Pg. No. 52 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
1. The first law passed by Parliament for the purpose of raising money from the colonies for the British Crown was the a. Sugar Act. b. Stamp Act. c. Townsend Acts. d. Tea Act.
2. Which of the following political philosophers helped inspire ideas found in the Declaration of Independence? a. Voltaire b. Hobbes c. Descartes d. Locke
3. What were the main weaknesses of the Articles of Confederation?
4. The compromise plan at the Constitutional Convention that featured a Senate with states equally represented, and a House whose members would be apportioned by popular vote, was called which of the following? a. The New Jersey Plan b. The Connecticut Plan c. The Virginia Plan d. The Georgia Plan
5. Who was selected to be the presiding officer at the Constitutional Convention? a. George Washington b. Thomas Jefferson c. John Adams d. Alexander Hamilton
6. What was the “Three-Fifths Compromise,” and why was it adopted at the Constitutional Convention?
7. The powers that are expressly granted to Congress in the Constitution are referred to as a. implied powers. b. enumerated powers. c. reserved powers. d. shared powers.
8. The sharing of powers between the national govern- ment and the state governments is based on a principle known as a. checks and balances. b. separation of powers. c. federalism. d. distributed authority.
9. Identify three “checks” that Congress has on the power of the president.
10. The fact that the proposed constitution would be debated by the states during the winter months gave an advantage to a. the Federalists. b. the Anti-Federalists. c. smaller states. d. none of the above.
11. In order for the proposed constitution to be adopted, how many of the 13 states had to ratify it? a. 7 b. 9 c. 11 d. All 13
12. In order to guarantee that the proposed constitution would be adopted, Federalists promised that which of the following would be incorporated into the new constitution by the first Congress? a. The Declaration of Independence b. Federalist No. 10 c. Common Sense d. A bill of rights
13. Why did the Anti-Federalists oppose the adoption of the new constitution?
14. Which of the following is not required for passage of a constitutional amendment? a. Two-thirds vote in both houses of Congress b. Approval by three-quarters of the state legislatures
or ratifying conventions c. Presidential approval d. All of the above are required.
15. Would those who are concerned about limiting the power of the federal government favor a “loose” or “strict” construction of the Constitution? Why?
TesT yOurseLF
1. a. (LO 2-1); 2. d. (LO 2-1); 4. b. (LO 2-2); 5. a. (LO 2-2); 7. b. (LO 2-3); 8. c. (LO 2-3); 10. a. (LO 2-4); 11. b. (LO 2-4); 12. d. (LO 2-4); 14. c. (LO 2-5)
52 Chapter 2 The Founding and the Constitution
53048_ch02_ptg01_hr_024-053.indd 52 09-11-2014 09:15:15
# 153120 Cust: Cengage Au: Dautrich Pg. No. 53 Title: The Enduring Democracy, 4e
C / M / Y / K Short / Normal
DESIGN SERVICES OF
S4carliSle Publishing Services
MasTer THe CONCePT OF FeDeraLisM wiTH FOr aMeriCaN gOVerNMeNT
REvIEW for American Government Access Key Term Flashcards for Chapter 2.
STAY CuRRENT for American Government Access the KnowNow blog and customized RSS for updates on current events.
TEST YouRSELF for American Government Take the Wrap It Up Quiz for Chapter 2.
STAY FoCuSED for American Government Complete the Focus Activities for The Constitution.
Chapter 2 The Founding and the Constitution 53
53048_ch02_ptg01_hr_024-053.indd 53 09-11-2014 09:15:15
-
- 2014-11-09T10:10:31+0530
- Preflight Ticket Signature
