American Government

"Liberty, when it begins to take root, is a plant of rapid growth."

-George Washington

· The Declaration of Independence

· The U.S. Constitution and its Bill of Rights

· The Enlightenment and Political Philosophy

Expected Outcomes To understand the philosophical principles behind the Declaration of Independence and the Constitution, and how these principles influence the structure and process of government.

Overview

The United States, as a nation, was born of the American Revolution of 1776. This revolution cut the political ties between England and its American colonies. Many "Americans" living in the colonies had complained about harsh British rule. King George of England had ruled over the colonies with a heavy hand, increasing taxes with the Stamp Act and the Sugar Act, for example. These abuses began to divide the "patriots" in favor of independence and the "loyalists" in favor of the English Crown.

Tensions between the American colonials and British soldiers boiled over in the Boston Massacre, when a mob harassed British soldiers, who then fired their muskets into the crowd, killing three, mortally wounding two others, and injuring six.

Another famous incident which helped inspire the American Revolution was the Boston Tea Party of 1773, launched as a protest to the British Tea Act. This Act gave the British East India Company a tea monopoly, shutting out American traders. Bostonians disguised themselves as Mohawk Indians, then boarded the British ships and dumped all 342 containers of tea into the harbor.

Two years later, in 1775, there were more serious conflicts between colonials and British troops: the Battles of Lexington and Concord, the prelude for a full conflict. The American Revolutionary War was long, bloody and ended with the French-assisted victory of the American Continental Army in Yorktown in 1781.

An understanding of American government and politics should consider two documents related to this war and its aftermath. The first is the Declaration of Independence, which launched the American Revolutionary War; and the second is the U.S. Constitution, which replaced the post-war Articles of Confederation and which remains the highest law of the land.

This lesson analyzes these documents, noting how they were part of a trans-Atlantic Enlightenment movement with emphasis on reason, freethinking, natural law, popular sovereignty, and human equality. Many of these ideas are visible in the Declaration of Independence, written by Thomas Jefferson. These ideas provided the ideological and philosophical framework for the American Revolution.

After the expulsion of the English monarchy, the Articles of Confederation - in effect from 1776 to 1787 - turned the former colonies into largely autonomous states with a weak federal government. However, many people thought that this decentralized system did not solve the problem of providing for a common defense or for integrating state economies. Some elites also hoped that a stronger central government could put down local insurrections with more effect, thereby protecting their property rights. These were just some of the concerns behind the crafting of the U.S. Constitution, inspired by the Federalist Papers and written by James Madison.

As the Constitution suggests, the United States was not established to be a "pure democracy" in which people rule themselves - some call this "mob rule" – but, rather a representative democracy or a "constitutional republic" characterized, in the United States, by the rule of law, separation of powers, checks and balances, civil liberties and a federalist division of power between national and state governments. These items will be explained in this lesson.

The Declaration of Independence The Declaration of Independence provided the ideological framework for the American Revolution of 1776, a war of independence against Britain that was eventually won by the United States.

The sentiment behind the Declaration of Independence was reflected by a Frenchman who served in George Washington's Continental Army as a general, Marquis de Lafayette.

"When the government violates the people's rights, insurrection is, for the people and for each portion of the people, the most sacred of the rights and the most indispensable of duties."

-General Marquis La Fayette

The Declaration of Independence was produced by the Second Continental Congress, on July 4, 1776, which formally declared that the Thirteen Colonies were independent of Great Britain. The text below is the actual text from the Declaration.

This following phrase, found above, is vital to the Declaration:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The identification of unalienable rights is what turns people from "subjects" under governmental control to "citizens" who lend governments their authority. Thus, the natural law referred to by the Founders includes human equality and popular sovereignty.

Popular sovereignty means that the authority and justification to rule over a people emerges from the people themselves – rather than being imposed from the top down, which is the case in a monarchy or in an oligarchy. The central tenet is that legitimacy of rule or of law is based on the consent of the governed, and the thinkers who formalized this concept included Thomas Hobbes and Jean-Jacques Rousseau.

Popular sovereignty, an Enlightenment idea, is normally reflected by elections. Modern democracies are based on universal citizenship and enfranchisement for all adults, regardless of race, gender or other classifications.

By the way, many of these ideas about "natural law," the "consent of the governed" and "limited government" originated in back in England, with John Locke, who wrote the Second Treatise of Civil Government in 1689.

In the Declaration of Independence, there is a sense that people have an inherent right to overthrow a government – only, however, when the ruling authority became extremely offensive and intolerable. The Declaration of Independence reflects the belief shared by Thomas Jefferson and a few other Founding Fathers that political authority rested in the people, and that government depended upon the consent of the governed.

Interestingly, the Declaration of Independence above also contains language used by modern Christians and secularists to advance their respective points of view. There is the reference "Nature's God" and to a "Creator," suggestive of Deist, monotheist or Christian beliefs. It is this Creator who imbued people with unalienable rights.

However, American revolutionaries also challenged the "Divine Right of Kings," which employed Biblical passages to suggest that monarchs have a higher mandate. As Romans 13:1-2 states:

"Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resisteth shall receive to themselves damnation."

From this perspective, the Declaration of Independence becomes a complex document. It recognized a Creator, but it also rejected the Biblical mandate and clerical authority. The American Revolution, therefore, appears to have been inspired both by Deist or Christian principles and, simultaneously, by secular and anti-clerical ones. This dual legacy is evident today with political controversies over school prayer and other issues.

The U.S. Constitution

The Constitutional Convention, 1789

There are two remarkable, little-known facts about the U.S. Constitution.

First, it is the world's oldest working constitution. Despite being a young society, the United States is the world's oldest continuing republic. Most of Europe, for example, underwent a complete political transformation after World War II, as did China and Japan and, in fact, the rest of the world. The U.S. continues to operate with a political system that was born in 1787.

Second, it is the world's shortest constitution. The U.S. Constitution has just 4,400 words (excluding amendments). Most countries have encyclopedic-style constitutions that work against the interests of clarity and accessibility.

It is essential to view the emergence of the U.S. Constitution as a solution to problems. The first 13 colonies, once independent, were very loosely bound together in the Articles of Confederation. The Articles of Confederation, a precursor to the Constitution, gave each state considerable power – even the power to print their own money, as shown below – but national government (or federal government) was too weak, many thought. A weak federal government would not be able to defend the nation against aggression or stimulate commerce or put down insurrections against the establishment, like Shay's rebellion, when small farmers and merchants revolted against foreclosures.

Shay's Rebellion, 1786

Shay's Rebellion was an armed uprising in Massachusetts in 1786. The rebels, led by Daniel Shays, were mostly small farmers angered by crushing debt, taxes and debtor's prisons. A private militia, organized by banks, eventually defeated the rebel force on February 3, 1787. Many of the men who signed the Constitution were wealthy and had a stake in protecting the established order; thus, they sought to imbue a national government with more power.

Indeed, it is also important to note that the Constitution would classify African Americans as just 3/5ths of a person, for census purposes, and it maintained the institution of slavery. In this sense, the Constitution reflects elitist rather than populist interests.

Paradoxically, this same Constitution – specifically its later amendments (like the 14th Amendment and its "Equal Protection Clause") - would eventually be used by African Americans and other oppressed minorities to secure civil rights and liberties. They would hold up the provisions of equality and insist that the political system live up to its stated principles.

In sum, the delegates at the Constitutional Convention in Philadelphia wanted the central government to become as powerful as governments in Paris or London. So, with this concern in mind, the framers of the Constitution – principally James Madison – set out to create a stronger federal government – but, not too strong.

James Madison, with other Founding Fathers, such as Alexander Hamilton, elaborated upon several concepts in order to craft the Federalist Papers and, eventually, the Constitution. However, there were many who wrote in opposition to the Federalist Papers, known as the Anti-Federalist Papers .

A. Preventing Tyranny of the Majority

The main goal of the U.S. Constitution was to create a federal government that would be advantageous to the States and its people, but one that would not evolve strong central powers and become tyrannical.

The "paradox of democracy" is that it can produce a "tyranny of the majority" where majority rule threatens individual rights. Living up to one democratic value – the will of the majority – can actually undermine another value – the rights of the minority or individual. After all, if two men on a desert island vote to cannibalize the third, that would still be democracy.

Let's take another example. Suppose that, for some reason, society suddenly despised people with green eyes; that society marginalized green-eyed people as part of the "out group;" that people believed reports that green-eyed people were more likely to become criminals, etc… And let's suppose that 51% of the people voted to electronically monitor all green-eyed people with radio frequency bracelets, and to restrict their movement, and to tag them with longer mandatory sentences for minor crimes, etc… These new laws restricting green-eyed people would be "democratic." They would indeed reflect the will of the majority.

If this scenario sounds far fetched, it might be worth considering that Japanese-Americans (U.S. citizens who had never been to Japan) were rounded up and placed into detention centers during World War II. Most Americans supported the idea at the time, and the U.S. Supreme Court even found the detentions legal under Korematsu v. United States (1944)! In this case, the system of separation of powers and checks and balances on majority rule appeared to have failed, and by the 1990s the U.S. government officially apologized for the detentions and paid monetary reparations to some of the survivors.

Tyranny of the Majority?

Internment Camp for Japanese-Americans, WWII

James Madison believed that the Constitution should limit the powers of the majority. Specifically, he was concerned about the possibility that a majority would oppress a minority. He called this scenario the "Tyranny of the Majority."

B. Separation of Powers & Checks and Balances

What was Madison's solution? It was, in part, a system of "separation of powers." This meant that the power of government would rather be divided among three separate branches. That way, if a tyrannical faction wanted to capture government, they would have to seize control of all three branches. This would be difficult, though not impossible. The three branches are:

· Legislative (the Congress, described in Article I)

· Executive (the President, the Vice President, 15 Cabinet departments, and numerous boards, agencies, and commissions, described in Article II)

· Judicial (the Supreme Court, 96 District Courts, 12 Appeals Courts, and several special courts, described in Article III)

The powers, duties and responsibilities of each branch are described in Articles I, II and III of the Constitution.

The Constitution also outlines a system of "checks and balances," meaning that each branch of government can do something to limit the others. For example, the president can veto a bill emerging from Congress, but Congress can override that veto with 2/3rds majority vote in each of its two chambers (i.e., the House and Senate) within 10 days. This system of checks and balances is what actually helps keep the three branches separate. Congress

The Founding Fathers anticipated that Congress would become the most central and most vital branch. That's why its responsibilities are found in Article I of the Constitution.

"But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."

James Madison

In fact, because Madison foresaw Congress as being a bit more central than the other branches of government, he proposed dividing it into two houses. This idea, described in The Federalist #51, emerged in the "Connecticut Compromise" at the Constitutional Convention.

This compromise resolved the tension between the "Virginia Plan," which favored a population-weighted representation in the proposed National Legislature, and the "New Jersey Plan," which proposed a single-chamber legislature in which each state, regardless of size, would have one vote, as under the Articles of Confederation.

The U.S. Constitution provides for a bicameral legislature. The upper chamber is the Senate. Each of the 50 states has two senators who serve renewable terms of 6 years. The lower chamber is the House of Representatives. Each of the 50 states has a different number of representatives, depending upon their relative population, and this is determined in the national census conducted every 10 years. Today, there are 435 representatives who serve renewable terms of 2 years, with California having the most.

Arguably, Congress was once the most powerful branch of government, but the Great Depression of the 1930s, World War II, the Cold War and the War on Terror have all served to concentrate power in the Executive Branch.

Article I, Section 8, lists the powers of Congress, and these are considerable, as they include the ability to pass any laws "necessary and proper" to fulfill its charge. Congress also has the power to declare war.

Finally, Congress is also empowered to override a presidential veto (with two-thirds of the vote within each chamber, within 10 days), and to impeach the president for "high crimes and misdemeanors." Furthermore, the Senate must confirm numerous Executive Branch appointments, including justices to the Supreme Court.

President

The Executive Branch, described in Article II, consists of the president, his cabinet and numerous agencies. Today, the president is entitled to serve only two full terms of four years each.

The president is elected, not by the popular vote, but by the electoral vote of the Electoral College, meaning that each state has a certain number of electors. Today, there are 535 electoral votes in play, and a candidate has to reach 270 to win the election. California is the most valuable state because it is the most populous; although John Kerry won California in 2004, he still lost the overall election.

The president can veto legislation coming from Congress, and can also, through the Cabinet and bureaucracy, challenge congressional actions. The president also serves as Commander-in-Chief of the nation’s armed forces.

The first president of the United States was, of course, George Washington.

Supreme Court

Finally, the judicial branch is concerned with settling disputes that reach it from the bottom up, through an appeals process, or with deciding more urgent cases that involved constitutional questions.

Over time, the Supreme Court has built upon a power inherent to it under the Constitution in Article III – the power of judicial review- to provide the "last word" on the most pressing constitutional questions. Basically, the responsibility of the Supreme Court is to decide whether or not a law or action is constitutional or unconstitutional.

The justices who form the majority opinion issue a written explanation, called the "opinion." Sometimes, a single justice will write this and the others sign their names; other times, the justices write separate concurrent opinions to explain their specific reasons for voting their way.

The justices who voted in the minority often issue a "dissent," either jointly or separately, explaining why they thought the decision was wrong.

Supreme Court justices often circulate informal drafts amongst each other to test out how and why the others will vote on a pending case – a case "on the docket."

Marbury v. Madison (1801), McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) enhanced the Supreme Court's power of judicial review. These cases are examined in a later unit.

The Supreme Court is not democratically elected, its justices being nominated by the president and confirmed by the Senate. The number of justices was not set in the Constitution, but it has evolved into nine, with appointments lasting the term of a natural life or retirement.

As described above, each of the three branches of government has some power over the others. This prevents one branch from becoming too powerful and establishing a tyranny or dictatorship based on arbitrary government. Interestingly, the Supreme Court often has to rule on questions regarding checks and balances.

Bill of Rights

One of the distinguishing features of the U.S. Constitution is a Bill of Rights that was attached to the final document as a kind of guarantee that government would not acquire too much power over individuals. These amendments came into effect on December 15, 1791, when ratified by three-fourths of the States. The Bill of Rights plays a central role in American law, but it is also a symbol of the freedoms and culture of the nation, with such freedoms including the freedom of speech and the press, etc.

The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as the Magna Carta (1215). The Bill was largely a response to the Constitution's influential opponents, including prominent Founding Fathers, who argued that it failed to protect the basic principles of human liberty.

The United States Bill of Rights consists of the first ten amendments to the United States Constitution. Among the enumerated rights these amendments guarantee are the freedom of speech, the freedom of the press, the freedom of assembly, the free exercise of religion, the freedom to petition, the people's right to keep and bear arms, and the rights to be free of unreasonable search and seizure, cruel and unusual punishment, and compelled self-incrimination.

In addition, the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and reserves all powers not granted to the Federal government to the citizenry or States.

There is one civil liberty the Founders thought was important enough to include in the actual main body of the Constitution: habeas corpus.

In legal terms, habeas corpus obliges a government to account for a person's detention. "Habeas corpus" is Latin for "you have the body." Kings and queens in England enjoyed the power to lock someone up in a dungeon and throw away the key, but not so easily after the Magna Carta of 1215.

After the American Revolution of 1776, the principle of habeas corpus was found in most State constitutions, and more importantly, it is found in the 1787 United States Constitution.

This course returns to this Bill of Rights frequently in the course, but it is reproduced here below. Please read/review the following document:

The Enlightenment and Political Philosophy

The Declaration of Independence and the U.S. Constitution were not written in isolation; they were part of a much larger movement – political, philosophical, and intellectual – called the Enlightenment.

The Enlightenment, as mentioned earlier, emphasized reason, freethinking, natural law, popular sovereignty, and human rights. It challenged theocratic fundamentalism and hereditary aristocracy. The Enlightenment was an idealistic movement in that it believed in progress.

Benjamin Franklin is a good example of an Enlightenment-era Renaissance man.

The Enlightenment was a trans-Atlantic movement, and many of the Founding Fathers were in communication with English and French reformers and revolutionaries in Europe.

In France, for example, a revolutionary ideology was taking hold, and "liberty, equality and fraternity" were viewed as natural and inevitable forces propelling humankind forward. Some of the French idealists crossed the ocean to participate in the American Revolution.

Conclusion

Virtually all of the Founding Fathers believed in the general principles of Enlightenment. It is also possible to identify, even at this early stage, the antecedents of what modern Americans consider "conservative" and "liberal" political ideologies or cultures. Of course, the political parties representing liberal and conservative views have changed names over the centuries and even changed positions.

Modern American conservatism descends – in part – from the ideas of the Federalist Party, influential from the 1790s to the 1820s. The party was formed by Alexander Hamilton. The Federalists were nationalists who wanted a fiscally and militarily strong nation state; and they believed in the tried and tested over the new and unproven. Federalists also believed in rule by a well-educated elite, and thus appealed to merchants, bankers, lawyers, editors, landowners, and industrialists; one of John Jay's favorite maxims was, "The people who own the country ought to govern it." Its most powerful leader was Hamilton, and its hero was George Washington.

Modern American liberalism descends – in part – from the ideas of the Democratic-Republican Party, founded in the 1790s by Thomas Jefferson and James Madison. In fact, this party was first named the "Republican" Party, but it is actually the ancestor of the modern Democratic Party. The populist-oriented Democratic-Republican Party promoted the primacy of the yeoman farmer over bankers, industrialists and merchants. It opposed such Federalist policies as high tariffs, a navy, military spending and a national bank.

Just as the Declaration of Independence contains both Deist and secular principles, so too does the Constitution contain both the conservative emphasis on traditional order, security and continuity and the liberal emphasis on personal freedom, egalitarianism and secularism.

This dual or complex characteristic of the Constitution allows for that document to be interpreted in competing ways – in terms of "original intent" by conservatives and "active liberty" by liberals. Indeed, there is not final interpretation regarding the Constitution, and rival perspectives compete to this day.