The Constitution – Lecture Notes

Week Two – Wilson,
Chapter 2

Instructional
Objectives

1. Explain the notion of “higher law” by which
the colonists felt they were entitled to certain “natural rights.”
List these rights.

2. Compare the basis on which the colonists
felt a government could be legitimate with the basis of legitimacy
then assumed in monarchies.

3. List and discuss the shortcomings of
government under the Articles of Confederation.

4. Compare and contrast the Virginia and New
Jersey plans, and show how they led to the “Great
Compromise.”

5. Explain why separation of powers and
federalism became key parts of the Constitution.

6. Explain why a bill of rights was not
initially included in the Constitution and why it was
added.

7. List and explain the two major types of
constitutional reform advocated today, along with specific reform
measures.

Lecture Notes

I. The problem of liberty

A. The colonial mind

1. Belief that British politicians
were corrupt and thus English constitution inadequate to
protect citizens’ liberty

2. Belief in a higher law of natural
rights

a. Life

b. Liberty

c. Property (Jefferson
notwithstanding)

3. A war of ideology, not economics –
This is disputed!

4. Specific complaints against George III
for violating inalienable rights Voting was not widespread in
England itself at this time. Only about one in twenty-five
Englishmen had the suffrage in 1776.

B. The real revolution

1. The “real” revolution was the
radical change in belief about what made authority legitimate
and liberties secure

2. Government by consent, not by
prerogative

3. Direct grant of power in a written
constitution

4. Human liberty prior to
government

5. Legislative superior to executive
branch because legislature directly represented the
people

C. Weakness of the confederation

1. Could not levy taxes or regulate
commerce

2. Sovereignty, independence retained by
states

3. One vote in Congress for each
state

4. Nine of thirteen votes in Congress
required for any measure

5. Delegates to Congress picked, paid for
by state legislatures

6. Little money coined by
Congress

7. Army small; dependent on state
militias

8. Territorial disputes between states
led to open hostilities

9. No national judicial system

10. All thirteen states’ consent
necessary for any amendments

The newly created government
almost succumbed to a military coup in an incident in 1783
called the Newburgh Mutiny. When the military was ordered to
disband after the war, about two thousand officers refused
to obey since they had not been paid in two years. The
government, lacking the power to tax, was broke. Why was
there no coup? George Washington, in addressing the
officers, had to put on eyeglasses to read and said,
“Gentlemen, you will permit me to put on my spectacles, for
I have not only grown gray but almost blind in the service
of my country.” Rather than carrying forward their revolt,
the soldiers wept.

Shay’s Rebellion, a small local
rebellion in Massachusetts, was unable to be supressed
withoit state intervention. This led to concerns about both

the stability and strength of the nation.

II. The Constitutional Convention

A. The lessons of experience

1.State constitutions

a. Pennsylvania: most
democratic, trampled minority rights

b. Massachusetts: less democratic, but
Shays’s Rebellion

2. Shays’s Rebellion brought fear that
states about to collapse

3. Rule of England

B. The Framers

1. Who came: men of practical
affairs, including Continental army veterans and Congress of
the Confederation members

2. Who did not come – Rhode Island was
the sole state that refused to send any delegates to the
convention.

3. An entirely new constitution, though
authorized only to revise Articles

4. Lockean influence

5. Doubts that popular consent alone
could guarantee liberty

6. Results: “a delicate problem”; need
strong government for order but not
threaten liberty

III. The challenge

A. The Virginia Plan

1. Strong national government
organized into three branches

2. Two houses in legislature

3. Executive chosen by
legislature

4. Council of revision (executive and
some judiciary branch members) with veto power

5. Two key features of the
plan

a. National legislature with
supreme powers

b. One legislative house elected
directly by the people

B . The New Jersey Plan

1. Sought to amend rather than
replace Articles

2. Proposed one vote per state

3. Protected small states’ interests
while enhancing power of national government

C. The Great Compromise (or Connecticut
Compromise)

1. House of Representatives based
on population and directly elected by people

2. Senate of two members per state and
elected by state legislatures

3. Reconciled interests of large and
small states

IV. The Constitution and democracy

A. Founders did not intend to create
direct democracy

1. Physical impossibility in a vast
country

2. Mistrust of popular
passions

3. Intent instead to create a republic, a
government with system of representation

B . Popular rule only one element of new
government

1. State legislators to elect
senators

2. Electors to choose
president

3. Two kinds of majorities: voters
(House) and states (Senate)

4. judicial review another limitation,
not necessarily intended by Founders

5. Amendment process

C. Key principles

1. Separation of powers

2. Federalism

D. Government and human nature

1 . Aristotelian view: government
should improve human nature by cultivating virtue

2. Madisonian view: cultivation of virtue
would require a government too strong, too dangerous;
self-interest should be freely pursued within limits

3. Separation of powers enables each
branch to check others

4. Federalism enables one level of
government to act as a check on the other

V. The Constitution and liberty

A. Whether constitutional government
was to respect personal liberties is a difficult question

1. Ratification by conventions in
at least nine states a democratic feature

2. But technically illegal-Articles could
be amended only with unanimous agreement of thirteen
states

B. The Antifederalist view

1. Liberty could be secure only in
small republics

a. Otherwise national government
would be distant from people, becoming tyrannical

b. Strong national government would
use powers to annihilate state functions

2. There should be many more restrictions
on strong national government

3. Madison’s response: personal liberty
safest in large (extended) republics

a. Coalitions likely more
moderate there

b. Government should be somewhat
distant to be insulated from passions

4. Reasons for absence of bill of
rights

a . Several guarantees in
Constitution already

(1) Habeas
corpus

(2) No bill of attainder

(3) No ex post facto
law

(4) Trial by jury

(5) Privileges and
immunities

(6) No religious tests for
political office

(7) Obligation of
contracts

b. Most states had bills of
rights

c. Intent to limit federal government
to specific powers with constitution

James Madison had another reason
for opposing the inclusion of a bill of rights. He feared
that no list of rights could ever be complete, and that the
government would thus be invited to abridge the “forgotten”
rights. To deal with this problem, Madison proposed what
became the Ninth Amendment, which declares that citizens
have additional rights beyond those enumerated. When
introducing the amendment, Madison told Congress: “This is
one of the most plausible arguments that I have ever heard
urged against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I
have attempted it, as the gentlemen may
see.”

C. Need for a bill of rights

1. Ratification impossible without
one

2. Promise by key leaders to obtain
one

3. Bitter ratification narrowly
successful

The Bill of Rights did not
require the approval of all states for ratification, and it
did not initially receive such approval. For example,
Georgia did not ratify the Bill of Rights until
1939.

VI. The Constitution and slavery

A. Slavery addressed in three
provisions

1. House of Representatives
apportionment

2. Congress could not prohibit slave
trade before 1808

3. Fugitive slave clause

B . Necessity of compromise: otherwise no
ratification

C. Legacy: civil war, social and political
catastrophe

VII. The motives of the framers

A. Acted out of mixture of motives:
economic interests played modest role

B . Economic interests at the
convention

1 . Economic interests of framers
varied widely

2. Charles Beard: those who owned
government debt supported Constitution

3. But no clear division along class
lines found by later historians

4. Recent research: state economic
considerations outweighed personal considerations

a. Exception:
slaveholders

C. Economic interests and
ratification

1. Played larger role in
state-ratifying conventions

2. In favor: merchants, urban, owned
western land, held government IOUs, no slaves

3. Opposed: farmers, held no government
IOUs, owned slaves

D. The Constitution and equality,
Federalists and Antifederalists

1. Critics: government today is too
weak

a. Bows to special interests
that foster economic inequality

b. Liberty and equality are therefore
in conflict

2. Framers more concerned with political
inequality

a. Weak government reduces
political privilege

VIII. Constitutional reform-modern
views

A. Reducing the separation of powers
to enhance national leadership

1. Urgent problems unable to be
solved-gridlock

2. Proposed remedy: President should be
more powerful, accountable to voters

3. Government agencies exposed to undue
interference

4. Proposed remedies:

a . Allow Congress members to
serve concurrently in Cabinet

b. Allow president to dissolve
Congress

c. Empower Congress to require special
presidential election

d. Require presidential /congressional
teams in each congressional district

e. Establish single six-year term for
president

f. Lengthen terms in House to four
years

5. Results uncertain, worse from these
reforms?

B. Making the system less
democratic

1. Government does too much, not
too little

2. Attention being given to individual
wants over general preferences

3. Proposals

a . Limit amount of taxes
collectible

b. Require a balanced budget

c. President gained enhanced decision
authority (a delimited lineitem veto) in 1996 – now
unconstitutional.

d. Narrow authority of federal
courts

4. Changes unworkable or open to
evasion?

C. Who is right?

1. Crucial questions about
Constitution

a. How well has it worked in
history?

b. How well has it worked in
comparison with others?

Important
Terms

amendment (constitutional) A
change in, or addition to, a constitution. Amendments are proposed by
a two-thirds vote of both houses of Congress or by a convention
called by Congress at the request of two-thirds of the state
legislatures and ratified by approval of three-fourths of the
states.

Antifederalists Opponents to
the ratification of the Constitution who valued liberty above all
else and believed it could be protected only in a small republic.
They emphasized states’ rights and worried that the new central
government was too strong.

Articles of Confederation The
document establishing a “league of friendship” among the American
states in 1781. The government proved too weak to rule effectively
and was replaced by the current Constitution.

Beard, Charles A historian who
argued that the Constitution was designed to protect the economic
self-interest of its framers. Beard’s view is largely rejected by
contemporary scholars.

bill of attainder A law that
declares a person, without trial, to be guilty of a crime. The state
legislatures and Congress are forbidden to pass such acts, Article 1,
Sections 9 and 10, of the Constitution.

Bill of Rights The first ten
amendments of the U.S. Constitution, containing a list of individual
rights and liberties, such as freedom of speech, religion, and the
press.

checks and balances The power
of the legislative, executive, and judicial branches of government to
block some acts by the other two branches.

coalition Part of a theory
espoused by James Madison that hypothesized that different interests
must come together to form an alliance in order for republican
government to work. He believed that alliances formed in a large
republic, unlike in small ones, would be moderate due to the greater
variety of interests that must be accommodated.

Constitutional Convention A
meeting of delegates in 1878 to revise the Articles of Confederation,
which produced a totally new constitution still in use
today.

ex post facto law A law which
makes criminal an act that was legal when in was committed, or that
increases the penalty for a crime after it has been committed, or
that changes the rules of evidence to make conviction easier. The
state legislatures and Congress are forbidden to pass such laws by
Article 1, Sections 9 and 10, of the Constitution.

faction A term employed by
James Madison to refer to interests that exist in society, such as
farmers and merchants, northerners and southerners, debtors and
creditors. Madison postulated that each interest would seek its own
advantage and that the pulling and hauling among them would promote
political stability on a national basis.

federalism A political system
in which ultimate authority is shared between a central government
and state or regional governments.

Federalist No. 10
An essay composed by James Madison which argues that liberty is
safest in a large republic because many interests (factions) exist.
Such diversity makes tyranny by the majority more difficult since
ruling coalitions will always be unstable.

Federalist papers A
series of eighty-five essays written by Alexander Hamilton, James
Madison, and John Jay that were published in New York newspapers to
convince New Yorkers to adopt the newly proposed
Constitution.

Federalists A term used to
describe supporters of the Constitution during ratification debates
in state legislatures.

Great Compromise The agreement
that prevented the collapse of the Constitutional Convention because
of friction between large and small states. It reconciled their
interests by awarding states representation in the Senate on a basis
of equality and in the House of Representatives in proportion to each
state’s population.

judicial review The power
of courts to declare an act of Congress unconstitutional. It
is also a way of limiting the power of popular
majorities.

line-item veto The power of an
executive to veto some provisions in an appropriations bill while
approving others. The president does not have the right to exercise a
line-item veto and must approve or reject an entire appropriations
bill.

natural rights A philosophical
belief expressed in the Declaration of Independence that certain
rights are ordained by God, are discoverable in nature and history,
and are essential to human progress. The perception that these rights
were violated by Great Britain contributed to the American
Revolution.

New Jersey Plan A plan of
government proposed by William Patterson as a substitute for the
Virginia Plan in an effort to provide greater protection for the
interests of small states. It recommended that the Articles of
Confederation should be amended, not replaced, with a unicameral
Congress, in which each state would have an equal vote.

republic The form of
government intended by the Framers that operates through a system of
representation.

separation of powers An
element of the Constitution in which political power is shared among
the branches of government to allow self-interest to check
selfinterest.

Shay’s Rebellion A rebellion
in 1787 by ex-Revolutionary War soldiers who feared losing their
property over indebtedness. The former soldiers prevented courts in
western Massachusetts from sitting. The inability of the government
to deal effectively with the rebellion showed the weakness of the
political system at the time and led to support for revision of the
Articles of Confederation.

unalienable rights Rights
thought to be based on nature and providence rather than on the
preferences of people.

Virginia Plan A plan submitted
to the Constitutional Convention that proposed a new form of
government, not a mere revision of the Articles of Confederation. The
plan envisioned a much stronger national government structured around
three branches. James Madison prepared the initial draft.

writ of habeas corpus A court
order directing a police officer, sheriff, or warden who has a person
in custody to bring the prisoner before a judge to show sufficient
cause for his or her detention. The purpose of the order is to
prevent illegal arrests and unlawful imprisonment. Under the
Constitution, the writ cannot be suspended, except during invasion or
rebellion.

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