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1783-1788 1783-1788 Constitutional FoundationsConstitutional Foundations

Richard Jensen Imperial TAH

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Summary: USA gets Strong National Summary: USA gets Strong National GovernmentGovernment

• Nationalist sentiment led by veterans– Washington; Alexander Hamilton (NY)

– Long term vision of great nation

• Philadelphia: secret convention 1787– Terms of Office: 2-4-6 years

– Supreme Court; lifetime job

• Ratification Debates– Federalist papers

– Antifederalists & Bill of Rights

• YES: need strong gov't– Washington’s leadership

– Bill Rights promised soon

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Critical Era of 1780sCritical Era of 1780s

• Theory 1: Confederacy too weak

• Theory 2: it’s OK

• Evidence:– World at peace and no direct threats– USA very weak government; cannot pay its

bills because cannot collect taxes

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Problems with ConfederationProblems with Confederation

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

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

1760s and 1770s, and again in 1790s

• 13 separate states feud with each other• Spirit of nationalism requires strong country• Solution: write a new Constitution

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Main Idea = RepublicanismMain Idea = Republicanism

• Get rid of aristocracy

• Equal legal rights

• Political power (vote) limited to– Independent– Virtuous

• Strong sense of civic duty

• Hatred of corruption

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England and EuropeEngland and Europe

• Aristocracy: aristocrats own and rule the country

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

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

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Rights of EnglishmenRights of Englishmen

• Rule of Law– Magna Carta– Common law

• Parliament

• Taxation

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What is Corruption?What is Corruption?

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

• GOAL: minimize corruption

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"Serving Two Masters. The sort of thing that will cease when Senator Beck's Bill becomes a law." Keppler in Puck 1880. .

Railroad Corruption of Congress in Gilded Age

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Power itself corruptsPower itself corrupts

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

• States and national government split powers

• Rights of individuals protected by courts

• Congress and President split the power and watch each other all the time

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Founding Fathers: young menFounding Fathers: young men

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Philadelphia 1787Philadelphia 1787

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

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Issues 1787Issues 1787

• Fear of national power; solution: counterbalances• Small states vs Large• Sectionalism, North (New England) vs Middle vs South

– Later: West becomes important

• Inside the states: cosmopolitan seaports vs inland farms– Most states: move capital inland

• No foreign dangers at the moment; inward-looking• Slavery in South

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AssumptionsAssumptions

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

• separation of powers at national level– executive/legislative/judicial

– checks and balances: each watch the other

• federalism = balance between states & nation– states to remain sovereign in own sphere

– State Power; citizenship; courts; taxes; cities;

– control over election procedures

• popular sovereignty: people ultimately rule

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Slavery IssueSlavery Issue

• Southern states refused to consider abolition of slavery

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

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

20 years later (it was, in 1807)

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Virginia PlanVirginia Plan

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

• James Madison surprised delegates with complete new plan of government (not just small changes)

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

– weak Senate (also chosen by House)

• Small states had little power

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New Jersey PlanNew Jersey Plan

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

• One state one vote, giving small states an advantage

• Weak national government

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Great CompromiseGreat Compromise

• Take best part of Virginia Plan– Strong House

• Take best part of New Jersey Plan– Strong Senate

• Add strong president

• Everyone agreed

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Separation of PowersSeparation of Powers

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

army– Judiciary: vague in 1787 because world has

never seen a strong judiciary

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

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Checks and BalancesChecks and Balances

• Danger: everyone tries to get more power and that hurts the people

• Solution: have opposing powers that will stop and neutralize this

• Esp: Congress vs. President

• Also: Supreme Court

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Congress = peopleCongress = people

• Great Compromise: Senate for States, House for Population– slaved property counts, not other kind

• powers; rules; officers; journals– Congressmen are independent, not tools of state government

• House: represent population; power over taxes & spending– apportionment by enumeration

• Senate: too aristocratic? small states demand it;– advise and consent to appointments by 51%; Treaties by 2/3

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Office of PresidentOffice of President

• President: strong elected executive– not a king, or god; not hereditary

– limited powers, balanced by Congress

– debate on need, danger of office;

• Not a king (no inherited offices)

• Not a puppet of legislature

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Selecting a Republican PresidentSelecting a Republican President

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

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

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

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

• only used in 1800 and 1824

– crisis of 1800 requires clarification

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Presidential PowerPresidential Power

• executive departments not created but allowed for [Treasury, State, War started in 1789]

• domestic affairs: limited explicit powers• foreign affairs; ambassadors, treaties

– annex new territory? not explicit

• appointments to all offices – Senate confirmation as check

• Impeachment process (by House & Senate)– pardons: absolute power

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War PowersWar Powers

• President as commander in chief– no independent army aristocracy

• shared power with Congress– Congress declares war– Funds the military, makes rules

• State militia allowed (but not state armies)

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War Powers in 21War Powers in 21stst century century

• Declaration of war—obsolete since 1941• President makes war by sending in the military• 1973: President can make war for 90 days then

must ask permission from Congress– All president reject the law as unconstitutional

– Never tested

• Korea (1950), no permission asked; but permission was given in Vietnam and Iraq

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Missing TopicsMissing Topics Not discussed at ConConNot discussed at ConCon

• 1. not decided: national debt, national capital location

• 2. not expected: political parties; considered divisive

• 3. not expected: national media & focus on national affairs & (after 1900) on the President as persona

• 4. not expected: federal power expands at expense of state power

• 5. not expected: growth of Supreme Court power (esp 20c)

• 6. not developed: rights of minorities [Calhoun, 1830s]

• 8. Not mentioned: Executive orders by president

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Ratification Ratification by all 13 statesby all 13 states

• 1. Prestige of Washington, Franklin & other signers decisive

• 2. anti-federalists: no need for central power; demand bill of rights; fear of President; fear aristocratic Senate– localistic outlook & values vs cosmopolitan federalists– Insist on Bill of Rights

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

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

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Bill of RightsBill of Rights• Promised during ratification

• 10 Amendments adopted 1789 (in effect 1791); Madison as author

• Protect individual against Nation

• 9th-10: reserved to states and people

• 1868: 14th amendment

• 20c: extend rights so state and local government (inclusing public schools) cannot infringe them– Private parties like corporations & private schools still can infringe

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11stst Amendment: Speech, religion, Amendment: Speech, religion, assemblyassembly

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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22ndnd Amendment: guns Amendment: guns

• A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

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44thth Amendment: privacy Amendment: privacy

• The right of the people to be secure in their persons, houses, papers, and effects, – against unreasonable searches and seizures, shall not be

violated,

– and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Privacy leads to Roe v Wade = abortion right

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55thth Amendment: property Amendment: property

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

• Kelo case 2005 on eminent domain

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Later DevelopmentsLater Developments

• Marshall: Supreme Court makes final decisions

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

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

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

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Special “Privilege”Special “Privilege”

• Double meaning of “privilege”

• Special advantages given to ascribed status– that is, status you are born with (race, gender,

ethno-religious, ancestry)– violates “equal rights” principle

• highly contested issue then and now– race/racism; “privileged” ethnics– affirmative action to counter-act the privilege

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Who can vote?Who can vote?• Ex Confederates (no 1867, yes, 1869)• African Americans in South (no before 1867; yes,

1867; no, 1890; yes 1965)• Women (yes 1920)• Indians on reservations (yes, 1924)• Illiterates (no 1900; yes 1970)• Non-Citizens (no)• Age 18-21 (yes, 1972)• Felons (no? debated 2006)• Everyone MUST vote??? (yes in Australia, no in

USA)

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Control of people’s lives?Control of people’s lives?Personal Liberty & PrivacyPersonal Liberty & Privacy

• Prohibition (no sales of liquor or beer?)

• Abortion (illegal to perform one?)

• Gay Rights (discrimination allowed?)

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Political StatusPolitical Status

• Person• Citizen

• Protected Class

• Republican Adult

• Basic rights• Basic + US will

protect internationally

• Indians, ex-slaves; & “minorities” after 1970

• Voting Rights

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Why important todayWhy important today

• Supreme Court interprets the Constitution word for word

• All judges, lawyers, law professors study it very closely

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OriginalismOriginalism

• Debate today: should we depend more on– Original understanding in 1787

– Needs of America today?

• Justices Scalia and Thomas• Why: to have definite, fixed answers by using the

answers of 1787– NOT: history is contested ground. Founding Fathers

usually argued a great deal and rarely were fully agreed.

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Debate topic: war powersDebate topic: war powers

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Force everyone to vote?Force everyone to vote?

• Civic duty

• Australia requires it with fine

• Do we want uninterested people to vote?

• Should felons voted (convicted criminals who have served their prison time)– Only “good” should vote– BUT: help re-integrate them into society

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Abortion issueAbortion issue

• Prop 85: parental notification

• Rights: individual rights based on privacy and 14th Amendment

• Community rights: to define what is allowed by democratic vote

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2006 California voters say2006 California voters sayABORTION SHOULD BEABORTION SHOULD BE

• Always Legal 29%

• Mostly Legal 35%

• Mostly Illegal 23%

• Always Illegal 9%

Exit poll data

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Prop 85: Vote by genderProp 85: Vote by gender

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Prop 85: Vote by party affiliationProp 85: Vote by party affiliation

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Prop 85: 2006Prop 85: 2006

blue = “no”blue = “no”red = “yes”red = “yes”

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““Federalist” confusionFederalist” confusion

• Federalist in 1787=1788 = support the new Constitution– PRO: Hamilton, Madison– ANTI: Jefferson

• 1792-1816: “Federalist” = political party– Pro: Hamilton, Washington, Adams– Anti: Jefferson, Madison

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ReadingsReadings

• Popular: – Miracle At Philadelphia: The Story of the

Constitutional Convention May - September 1787 by Catherine Drinker Bowen (1966) 300 pages

– Decision in Philadelphia: The Constitutional Convention of 1787by Christopher Collier (1987)

• A Brilliant Solution: Inventing the American Constitution by Carol Berkin (2003), 200 pages of text, 100 pp documents

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Online bookOnline book

• The Fathers of the Constitution

By Max Farrand– http://www.blackmask.com/books14c/fat

hcdex.htm

– Short, accurate, readable