1/28/14  

1  

The Constitution Chapter 2

Some overall things to keep in mind

� The Constitution does not reflect the views of any single author

� No single signatory was happy with the entire document (including Madison)

�  It is a document of compromise � Which is to say that even the people who

wrote it did not always like it

Overall things cont. “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that whereever others differ from them it is so far error…

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”

A little background

� 1764 ◦  Sugar Act: increased duties on non-British

goods shipped to the colonies. ◦ Currency Act: prohibited American colonies

from issuing their own currency.

� 1765 ◦ Quartering Act: required Americans to house

and feed British troops. ◦  Stamp Act: taxed all printed materials.

1/28/14  

2  

Background

� The stamp act was strongly resisted. Americans intimidated tax collectors and passed resolutions condemning the act.

� 1766 ◦  Stamp Act repealed ◦ Declaratory Act: Parliament may make laws

binding the American colonies.

Background � 1767 ◦ Townshend Acts: taxes on glass, lead, paper,

paint, and tea. � 1770 ◦  Boston Massacre: soldiers enforcing the

Townshend Acts fire on civilians, killing 5 Americans.

� 1773 ◦ Tea Act ◦  Boston Tea Party

Background �  1775 ◦ War breaks out.

�  1776 ◦  Declaration of Independence adopted.

�  1777 ◦  Articles of Confederation adopted.

�  1781 ◦  British surrender.

�  1787-1789 ◦  Constitution written and ratified.

Why did America rebel first? �  Britain had other colonies. What made America unique? ◦  Geographic location ◦  Legacy of self governance

1/28/14  

3  

The Articles of Confederation

� Article II: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States.

� Article III: “The said States hereby severally enter into a firm league of friendship with each other.”

The Articles of Confederation � America’s First Constitution. ◦  America’s constitution during the Revolutionary

War. ◦  A confederation: highly decentralized, national

government derives its power from the states. States elect officials and can override federal government. ◦  States received one vote (although they could

send several delegates). Nine required for majority. No executive (kinda), no judiciary (kinda). ◦  Amendments and taxation had to be unanimous.

The Articles of Confederation �  “The taxes for paying that proportion shall

be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

� Article XI: “Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.”

The Articles of Confederation

� This led to massive coordination and free rider problems. ◦  If some states contributed to the war effort,

other states had an incentive to free ride. ◦ Contributions were completely voluntary. ◦  States were reluctant to provision the troops

of other states, and could not logistically provision their own.

1/28/14  

4  

The Articles of Confederation

� The states were so divided that some observers thought Britain might come back and reassert its authority.

�  States further refused to contribute to paying off the debt.

�  States taxed each other’s imports (a Prisoner’s Dilemma) and had their own currencies. The economy was a mess.

Shay’s Rebellion

� Bankrupted farmers threatening armed violence against state governments.

Shay’s Rebellion

� Under the Articles, no national response was forthcoming. Armed conflict came and Massachusetts had to defend against the farmers on its own.

�  Similar uprisings occurred across the country.

Writing a new constitution

�  asdf

1/28/14  

5  

Key Figures - Washington

� A good general? � But indisputably, a great leader.

Key Figures - Franklin

� A great statesman. � A scientist. � Respected the

world over. � Became an

abolitionist. � The oldest of the

founders – dies in 1790.

Key Figures - Jefferson

� Not a great leader. Waffled.

� A great writer: Declaration of Independence.

� Waffled on slavery.

� Not at the convention.

Key Figures - Hamilton �  An overpowering

intellect. �  Policy innovator. �  Abolitionist. �  Rash. �  Co-writer of the

federalist papers. �  “In politics, I am

indifferent what side she may be of—I think I have arguments that will safely convert her to mine.”

1/28/14  

6  

John Jay �  First chief justice. � Co-writer of the

federalist papers. � Abolitionist (as

governor of New York, emancipated slaves in New York)

� Not at the convention.

Key Figures - Madison � A great writer and

theorist. � Not so good at

politics. � Mediocre president. � Co-writer of the

Federalist Papers. Writer of pretty much all the really good ones.

Key Figures - Adams

� Another good policy guy.

� Hard worker. � Kind of a lousy

politician. � Not present at the

convention.

Constitutional Convention

� With national leaders and now the states themselves clamoring for a more effective federal government, 55 national leaders gathered in Philadelphia in 1787.

� They had very different ideas – some wanted minor revisions. Others wanted to start from scratch.

� Highly secretive. The windows were all shuttered.

1/28/14  

7  

The Virginia Plan

� A key dispute was the rights of small states vs. large states.

� Madison writes the Virginia Plan.

The Virginia Plan � Gave the federal

government a significant amount of power. ◦ Veto state laws. ◦ Raise a national

military. ◦ Gave great power to

the legislature. Similar to British Parliament.

The Virginia Plan

� Laid out the broad outline of the Constitution.

� A bicameral legislature. � A separate judiciary and executive. �  Independence for the executive.

The New Jersey Plan

� New Jersey offered a counter plan for small states. ◦ Kept the one vote per state system. ◦ Gave Congress the authority to tax. ◦  Simple majority votes instead of 9/13.

� Why did small states feel entitled to equal representation?

1/28/14  

8  

The Great Compromise

� Bicameral legislature where the lower house was proportional and the upper house non-proportional (the Senate). ◦ Contained many provisions that survived into

the final Constitution: six year terms for Senators and revenue legislation that begins in the House.

� Also called the Connecticut compromise.

Article I – The Legislature

�  Section I – House and Senate �  Section II – House ◦  Elected every two years by the people ◦ Representation based on population

�  Section III – Senate ◦  Elected every six years by state legislature ◦ VP is president of the Senate (breaks ties) ◦ Try impeachments

Article I – The Legislature �  Section IV – States run elections �  Section V – Internal Operations ◦ Determine own rules and proceedings

�  Section VI – Payment �  Section VII ◦  Bills for raising revenue shall begin in the

House. ◦  Bills must pass House and Senate ◦ Veto and overrides (2/3rd of House and

Senate)

Article I – The Legislature �  Section VIII (Enumerated powers): Gives the

duties of Congress. Congress can: ◦  Collect certain kinds of taxes ◦  Provide for defense ◦  Borrow money ◦  Regulate commerce (commerce clause) ◦  Establish immigration laws ◦  Coin money, regulate the value thereof ◦  Punish counterfeiters ◦  Establish Post Offices ◦  Copyright.

1/28/14  

9  

Article I – The Legislature o  Constitute the courts. o  Punish piracy and felony on the high seas. o  Declare war o  Raise and support an Army o  Provide and maintain a Navy o  Suppress insurrection, repel invasion o  Governing Washington DC o  “Make all laws which shall be necessary and proper

for carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States, or in any Department or Officer thereof.” (elastic clause)

Article I – The Legislature

�  Section IX ◦  End of slave trade shall not be before 1808 ◦ Habeas Corpus, Ex post facto laws

�  Section X – States cannot: ◦  Enter into treaties with other states ◦ Coin money ◦  Impose Tariffs

The Senate: a very strange legislative chamber � What kinds of states are advantaged by

the design of the Senate?

The Senate: a very strange legislative chamber �  Should this be changed?

1/28/14  

10  

The Senate: a very strange legislative chamber � Haha trick question. You can’t! � The Congress, whenever two thirds of

both Houses shall deem it necessary, shall propose Amendments to this Constitution, … Provided that … no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Executive

� Widespread disagreement on the form an executive should take. ◦ Hamilton had some crazy ideas

�  Some believed there should be a board of three executives.

The Executive

� Everyone knew the President would be Washington, and people trusted Washington, but they didn’t trust his possible successors.

� Large and small states quarreled about how the President would be elected. The compromise was the bizarre institution of the electoral college.

The Electoral College

� Who benefits from the design of the electoral college?

1/28/14  

11  

The Electoral College � Arguments against: ◦  1876, 1888, 2000. ◦ Only some states matter ◦  Small states are advantaged ◦  Could lead to lower turnout ◦ Most people don’t even understand it/know it

exists ◦  “Faithless” electors ◦  The possibility of an election decided by the

House ◦  Kinda contributes to a 2-party system

2000 Presidential Election Results

� Popular vote: ◦  Bush: 50,456,002 votes, 47.9% of total ◦ Gore: 50,999,897 votes, 48.4% of total

� Electoral vote: ◦  Bush: 271 ◦ Gore: 266

� Results in Florida: ◦  Bush: 2,912,790 votes ◦ Gore: 2,912,253

2012 Election Results

� Popular vote: ◦ Romney: 65,915,796 votes, 51.1% of total ◦ Obama: 60,933,500 votes, 47.2% of total

� Electoral vote: ◦ Romney: 206 ◦ Obama: 332 (62%)

The Executive

� Madison and Hamilton envisioned an independent executive who could check Congress. They achieved this by: ◦ Giving the President the ability to veto

legislation. ◦ Requiring a supermajority of each house to

override a presidential veto (2/3rds).

1/28/14  

12  

Article II – The Executive �  Section I ◦  Four year terms (no limit on number of terms) ◦  Electoral College

�  Section II ◦  Commander in Chief ◦  Pardons ◦ Make treaties with 2/3rds Senate agreement ◦  Appointments and nomination

�  Section III – State of the Union �  Section IV - Impeachment

Current Events Example � Appointments and Nominations: ◦  Specifically it says: “he shall nominate, and by and

with the consent of the Senate, shall appoint Ambassadors, other public ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Current Events Example

� And then: ◦  “The President shall

have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.”

Opening Question

�  In the first clause, what is the meaning of “with the advice and consent of the Senate”?

1/28/14  

13  

Current Events Example

� Recess Appointments are used fairly frequently:

Confirmation Trouble

�  asdf

On the other hand…

� Why is the 2nd clause necessary? What was its probable intent?

�  Is the way it is used now consistent with its original intent?

Current Events Example

�  Is there a clear constitutional winner?

1/28/14  

14  

Checks on the Presidency

� Only Congress can declare war �  Senate approval of ambassador

appointments and treaties �  Senate must confirm all appointments in

the executive departments.

The Judiciary

� Not a lot of time went into designing the judiciary.

� They did discuss two questions: ◦ Who would appoint Supreme Court justices? ◦  Should a network of lower federal courts be

created or should state courts handle all cases until they reach the federal court?

Article III – The Judiciary �  Section I – One Supreme Court and

inferior courts – Congress will design �  Section II – Judicial Power ◦ Cases dealing with the constitution ◦ Ambassadors ◦ Vs. United States ◦ Two or more States ◦  State and citizen of another state

�  Section III – Treason ◦  Punishment controlled by Congress.

The Checks and Balances

�  asdf

1/28/14  

15  

Solving the States’ Collective Action Problems �  The Framers recognized that the states had

to surrender some of their autonomy to a central agency – the national government – in order to prevent free riding or the breaking of collective agreements and thus allow successful joint actions.

�  This was important particularly in the areas of trade and foreign policy.

�  The constitution (article 1, Section 10) also forced states to “get along.” ◦  States cannot keep troops or war ships in time of

peace or enter into treaties with other states

The Issue of Slavery �  Slavery was not absent from the debates. It was

present at several important Junctures and figured importantly in many delegates’ private calculations, particularly those from the South.

�  One critical point was during the creation of the national legislature. ◦  Southern States wanted to count slaves as part of

their population, thus giving them more representatives in the House. Yet these “citizens” had no rights in those states. ◦  After much debate, the southern states were allowed

to count a slave as three-fifths of a citizen.

The Issue of Slavery � Why did the northern delegates give into

southern ones, who were fewer in number?

� They wanted to ensure ratification. �  In return, the south dropped their

opposition to commercial issues that were important to New England.

� Logrolling: a bargaining strategy in which two sides swap support for dissimilar policies.

How to Amend the Constitution

� Amendments can be proposed by: ◦ A two-thirds vote of both houses of Congress ◦ A constitutional convention called by

Congress on petition of two-thirds of the fifty states.

� And then ratified by: ◦ Three-fourths of the fifty state legislatures. ◦ Three-fourths of special constitutional

conventions called by the fifty states.

1/28/14  

16  

How does the Constitution Empower the Federal Government? �  The Commerce Clause: the power to

“regulate commerce with foreign nations, and among the several States.”

�  The Elastic Clause (or Necessary and Proper): “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers…”

�  The Supremacy Clause: “This Constitution… shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

Ratification �  9 of 13 states must ratify. The framers cheated a bit. �  Antifederalists object to the power of the government.

Bill of rights was added to address their concerns.

Ratification

� Two groups formed: federalists and anti-federalists.

�  Federalists, led by Madison, Hamilton, Jay and others, supported ratification.

� Anti-federalists, led by Patrick Henry, Samuel Adams and others, opposed ratification.

Order of Ratification �  Delaware (12/7/1787) �  Pennsylvania (12/12/87) �  New Jersey (12/19/87) �  Georgia (1/2/88) �  Connecticut (1/9/88) �  Massachusetts (2/6/88) �  Maryland (4/26/88) �  South Carolina (5/23/88) �  New Hampshire (6/21/88) �  Virginia (6/25/88) �  New York (7/26/88) �  North Carolina (11/21/89) �  Rhode Island (5/29/90) �  Vermont (1/10/91)

1/28/14  

17  

Bill of Rights

� http://www.colbertnation.com/the-colbert-report-videos/308089/april-28-2010/difference-makers---robert-ekas

� Many of the anti-federalists were concerned at the lack of a bill of rights. The first ten amendments were added to satisfy them.

Bill of Rights �  Amendment I Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

�  Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

�  Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

�  Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

�  Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Bill of Rights �  Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

�  Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

�  Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

�  Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

�  Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Federalist Papers

� A collection of essays arguing for ratification of the Constitution, written by Hamilton, Madison, and Jay.

� Explains key provisions of the Constitution.

1/28/14  

18  

Federalist #10 (Madison) �  “If men were angels, no government

would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Federalist #10 � Faction: “a number of citizens… who are

united and actuated by some common impulse”

� How do we guard against them? � Only countered by authoritarianism or

conformism. � Republican representation dulls the

impact of faction. Warring factions make for moderate representatives and then Congress dilutes factional power more.

Federalist #51 (Also Madison)

� The theory of checks and balances. �  “Ambition must be made to counteract

ambition.” � Hence the veto, review of appointments

and etc. � Meant to reassure Americans regarding

the power of government and any one person in government in particular.

Is it Constitutional? �  Social Security – is it constitutional? ◦  The Supreme Court ruled on this issue in 1937. ◦  The administration and Congress argued that in

the enumerated powers of Congress, it is stated that: “Congress shall have power to lay and collect taxes… and provide for the… general welfare of the United States…” ◦  Goes back to Hamilton and the idea of “implied

powers.” ◦ Madison, on the other hand, believed in what we

now call “strict constructionism.”

1/28/14  

19  

Is it Constitutional? �  Social Security cont. ◦ On the flip side of the coin, specific kinds of

taxes are mentioned in the Constitution, and a payroll tax is not one of them. ◦  Furthermore, there is not much to suggest

that the federal government can provide old age insurance, so presumably this power is reserved to the states. ◦ The court rules that “The conception of the

spending power advocated by Hamilton… has prevailed over that of Madison…”

Is it Constitutional?

� Medicaid? ◦  States do not have to provide medicaid. If

they do, however, the federal government will foot roughly 57% of the bill. ◦  If they choose to participate, they must

adhere to federal guidelines for providing it. ◦ Can the federal government tell a state how

to spend its own money? ◦ The courts say yes, if states have the option of

opting out of the program.

Is it Constitutional? � Universal Health Care? ◦ Major Provisions: �  Insurance providers must allow people with pre-

existing conditions to buy insurance. �  Medicaid eligibility expanded. �  Health insurance exchanges: a marketplace where

individuals and businesses can compare policies and premiums, and buy insurance.

�  Low income families will receive subsidies to buy insurance off the exchanges.

�  The individual mandate requires all persons without insurance to purchase it or pay a fine.

Is it Constitutional? � Universal Health Care cont. ◦  The commerce clause could cover it but critics

claim not purchasing insurance is a form of inactivity, not activity. ◦ One lower court says: “how participants in the

health care services market pay for such services has a documented impact on interstate commerce.” ◦ On the other side: Congress is “compelling an

individual to involuntarily enter the stream of commerce by purchasing a commodity in a private market.”

1/28/14  

20  

Is it Constitutional?

� Universal Health Care cont. ◦  In National Federation of Independent

Business v Sebelius, the court rules that it is constitutional. ◦ The mandate is a constitutional exercise of

Congress’ taxing power. NOT the commerce clause or the necessary and proper clause. ◦ You can expand medicaid but you can’t force

states to accept that expansion by threatening them with the loss of their existing funding.