Foundations of American GovernmentColonies to Constitution

What influenced the colonists?• Magna Carta

• (1215) first document to limit the King’s power• Established Due Process

• Habeas Corpus Act • (1678) government must tell you what you are being held for and show

evidence against you.• Petition of Right

• (1628) Government could not tax without consent• Government could not quarter troops

• English Bill of Rights• Trial by jury• No cruel and unusual punishment• Right to bear arms

What influenced the Founders? By 1776

• Americans had more than 150 years of local self-government• Free white men had served on juries, attended town meetings

and voted in local elections

What influenced the colonists? Thomas Hobbes

• English philosopher and author of Leviathan• Argued that humans without govt live in a “state of nature”, which is a

“state of war” against all• As such, life is “solitary, poore, nasty, brutish, and short”• To avoid death, people agree to leave this state of nature and form a

“social contract” and give all ABSOLUTE power to the state (which he named Leviathan)

• Hobbes’ view, thus, undermined the “divine” rights of kings.

What influenced the Founders? John Locke

• English philosopher and author of Second Treatise of Government (1690)

• In nature, all humans are born with natural rights before government. These are life, liberty and property.

• Natural law is superior to human law and people can challenge the tyranny of kings.

• Government must be based on consent of the people, must protect the above natural rights.

• Government must be limited.• People can withdraw consent and revolt if government is

unjust.

Thomas Hobbes (1588-1679) John Locke (1632-1704)

“Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many.” (A. Hamilton)

“There are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money.” (B. Franklin)

“From the nature of man, we may be sure that those who have power in their hands…will always, when they can…increase it.” (G. Mason)

1. What view of human nature is expressed in each statement?2. If you agree, what kind of safeguards would you include in a constitution?

3. Are the Founders’ concern about human nature valid today as in 1787? Why or why not?

The Government That Failed The Articles of Confederation

• The first document to govern the United States, it was adopted in 1777 and ratified in 1781.

• It established a confederation, a “league of friendship and perpetual union” among 13 states and former colonies.

• Congress had few powers; there was no president or national court system.

• All government power rested in the states.

Articles of Confederation has Problems

Articles of Confederation1. First functioning Government2. Ratified in 1781

While Revolution is in progress

3. Just one Congress Unicameral (one house) each State had 1 representative No executive or judicial branch Could pass laws, make treaties,

declare war & pace, borrow money, and create a postal system

Weaknesses of the A of C1. Congress couldn't require States to obey national laws (no

Judicial branch)2. The central government has little power over foreign

trade3. The Confederation has no effective military force.4. Each state issues its own coins and paper money5. The Confederation must ask states for money to support

the federal Government6. Changes in the Articles require a unanimous vote of the

thirteen, makes it impossible to change the constitution7. At least nine states are required to decide major issues

We NEED a stronger Government!!! “Shays Rebellion” scares a lot of people

• A Small Rebellion of Massachusetts farmers• Series of attacks on courthouses by a small

band of farmers led by Revolutionary War Captain Daniel Shays to block foreclosure proceedings

• Economic elite concerned about Articles’ inability to limit these violations of individual’s property rights

Can’t decide what to do with the Northwest Territory

Have a ‘Constitutional Convention,’ to rework the Articles• Philadelphia in May 1787

End up creating a new Constitution

Constitutional Convention1. 55 delegates from 12 states meet ‘for the sole

and express purpose of revising the Articles of Confederation’ “the well-bred, the well-fed, the well-read,

and the well-wed” Average age is 42, 2/3 lawyers, 1/3 owned

slaves Had political experience, from cities

2. No Rhode Island, John Adams, Thomas Jefferson, Sam Adams, John Hancock, or Patrick Henry!

3. Father of the Constitution James Madison of Virginia Spoke over 200 times Took extensive notes

The Philadelphia Convention1. Philosophy into Action

Human Nature -> self-interested Political Conflict -> factions Objects of Government ->

preservation of property Nature of Government -> sets

power against power so that no one faction rises above and overwhelms another

Constitutional Conflict!!!

Virginia Plan• Strong national government• Three branches of government

• (legislative, executive, judicial)

• Two houses of congress, based on population• Big states like it!

• VA, Penn, NC, Mass, NY, MD

JUST before was voted on, NJ introduced a new plan New Jersey Plan

• Three branches (same three)• ONE house – equal representation• Two executives

Issues of Equality

Constitutional Compromise1. Great (Connecticut) Compromise

• Roger Sherman of Conn presents the compromise

• House of Reps is based on population• Senate has two representatives per state

(equal representation)

2. Issues of North v. South• South wanted slaves to be counted in

population

Slavery and Representation

0 When Elbridge Gerry said “Blacks are property and are used to the southward as horses and cattle to the northward” If you want slaves to count “make them citizens and let them vote,” What was he saying???

Slavery and the Constitution1. Issue of Slavery

• Declaration of Independence is beginning to change people’s attitudes towards slavery

• South Carolina and Georgia threatened to leave the Union

2. James Madison (Father of the Constitution) comes up with a compromise

• 3/5 Compromise• Made a mockery of the Declaration• 3/5 of slaves were counted, for representation

purposes• Ended the slave trade coming IN to the country

in 20 years (1808)

Powers Granted by Constitution to National Government

Print money, borrow money Levy taxes Regulate interstate (between states) and int’l trade Create standard weights and measures Punish counterfeiting & piracy. Authorizing patents and

copyrights Establish post offices

Powers Granted by Constitution to State Governments

Issue licenses Regulate trade and business within states (intrastate) Conduct elections Establish local government Protect public health and safety Ratify amendments to the Constitution

Powers Denied to Both Governments

Many not violate Bill of Rights

Many not impose export taxes among states

May not change state boundaries

May not print money May not have treaties with

foreign nations May not tax imports or

exports May not impair contracts May not suspend a person’s

right w/o due process

National Government State Governments

Protecting Individual Rights in Constitution

1. Some were written into the Constitution: Prohibits suspension of writ of habeas corpus No bills of attainder (can’t punish people w/o a trial) No ex post facto laws (punish people or increase penalty for an act that was not

illegal when first committed). Religious qualifications for holding office prohibited Strict rules of evidence for conviction of treason Right to trial by jury in criminal cases

2. Some were not specified Freedom of speech and expression Rights of the accused

Not a Full Fledged Democracy!

Founders wanted government to listen to voices of the people, but did not want them to have a complete strangle hold on the political process.

There must be a “buffer” between the people’s demands and government’s actions.

Government that is too close to the people would get swept up in people’s passion and impulsive actions

Such a government would weaken the rights of the minority (elite class, property owners like them?)

Therefore, they did not create a complete democracy, only a republic!

The Madisonian Model

1. To prevent a tyranny of the majority, and factions, Madison proposed a government of:

Limiting Majority Control (so that a group will not be able to use government to control other groups)

Separating Powers Creating Checks and Balances a republic (country where people elect

representatives to make decisions on their behalf)

The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced

the very definition of tyranny.

James Madison in Federalist Papers #47

The Madisonian Model

1. Establishes a deliberative democracy and an elaborate decision-making process

2. With checks and balances, people wishing change must usually have a sizeable majority, not simple majority.

3. Changes are difficult to make and therefore, this model 4. Encourages moderation and compromise

The Madisonian Model

The Madisonian Model

What about the Executive Branch?1. Chief Executive

One? Two?/Three? How long should the

President serve?

2. How to choose? Congress picks the President? People elect him? Electors from each state? Electoral College?

Constitutional Convention: The Final Agreement

The Executive Single chief executive Electoral College to keep Congress out

• Clunky system• Intended to prevent factions from deciding election

4-year term of office

Electoral College1. Has changed a lot since 17872. Number of electors from

each state determined by the number of Senators plus Representatives

3. Whoever gets 270, wins!

www.270towin.comwww.electoral-vote.com

Amending the Constitution

FederalistsAnti-Federalists Supported the Constitution From larger states, cities, landowners,

professionals and wealthy merchants Alexander Hamilton James Madison John Jay John Adams George Washington

Against the Constitution Small farmers, shopkeepers, laborers Patrick Henry Aaron Burr Sam Adams Thomas Jefferson

Anti Federalists v. Federalists

FederalistsAnti-Federalists Weaker state government (strong nat’l govt) Indirect election of officials Longer office terms Government by elite Expected few violations of individual

liberties (Bill of Rights not necessary)

Strong state government (weak nat’l govt) Direct election of officials Shorter office terms Rule by common man Strengthened protections for individual

liberties (wanted Bill of Rights in the Constitution like those of many states)

Anti Federalists v. Federalists

The Difficult Road to Ratification1. The Federalist Papers

• Collaborative writing of Hamilton, Jay, and Madison (Publius)• Series of 85 essays defending the Constitution and republican form of

government• Considered the best work on American political theory

2. Anti-Federalist view• Such patriots as Samuel Adams and Patrick Henry• Const. a document written by aristocrats, for aristocrats• Would create an overbearing & overburdening central govt hostile to

personal freedoms• Wanted a list of guaranteed liberties, or a bill of rights• Decried the weakened power of the states

Federalists and Anti-FederalistsThe Federalists were people who supported ratification of the Constitution.

The Anti-Federalists were people who opposed it.Below are arguments made by the Anti-Federalists against the Constitution. Under each one, explain in your own words how

the Federalists countered this concern.

1. The national government would have too much power at the expense of the states.

2. There would be no protection of the individual rights of citizens against the government.

3. Congress could do anything with the Necessary and Proper Clause.

4. The president would be similar to a king.

Principles of the Constitution

1. Consent of the government2. Republicanism (a country where people elect

representatives)3. Separation of powers4. Checks and balances5. Judicial Review6. Federalism

Judicial Review1. Thomas Jefferson, a member of the Republican Party, won the election of

1800. Before Jefferson took office, John Adams, the outgoing President who was a Federalist, quickly appointed 58 members of his own party to fill government jobs created by Congress. He did this because he wanted people from his political party in office.

2. It was the responsibility of Adams' Secretary of State, John Marshall, to finish the paperwork and give it to each of the newly appointed officials. Although Marshall signed and sealed all of the papers, he failed to deliver 17 of them to the appointees.

3. Marshall thought his successor would finish the job. But when Jefferson became President, he told his new Secretary of State, James Madison, not to deliver some of the papers. Those individuals couldn't take office until they actually had their papers in hand.

Judicial Review1. Adams had appointed William Marbury to be justice of the peace of the

District of Columbia. Marbury was one of the last-minute appointees who did not receive his papers. He sued Jefferson's Secretary of State, James Madison, and asked the Supreme Court of the United States to issue a court order requiring that Madison deliver his papers.

2. Marbury argued that he was entitled to the job and that the Judiciary Act of 1789 gave the Supreme Court power to order the Secretary of State (Madison) to deliver the commission to Marbury.

3. When the case Marbury v. Madison came before the Court, John Marshall — the person who had failed to deliver the commission in the first place — was the new Chief Justice. The Court had to decide whether Marbury was entitled to his job, and if so, whether the Judiciary Act of 1789 gave the Court the authority it needed to force the Secretary of State to appoint Marbury to his position.

3. ThomasJefferson

Judicial Review1. Knowing that if he rules in favor Marbury, there is no way he can force

Jefferson and Madison to deliver the job to Marbury, John Marshall got clever.2. He instead declared parts of the Judiciary Act of 1789 (the part that allow the

Supreme Court to order government official to do something) UNCONSTITUTIONAL!

3. By doing so, John Marshall created the power of JUDICIAL REVIEW for the Supreme Court that wasn’t in the Constitution. Judicial review today is a powerful concept in American Constitution and became part of the checks and balances that the founders never gave the Court in the beginning.

4. Therefore, from the case of Marbury v. Madison (1803), the Supreme Court created the concept of JUDICIAL REVIEW – it has the power to review all laws in the nation to ensure they are constitutional.