The Constitution

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 suppressed without 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 self interest.

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.

Resources:

– How does the Supreme Court serve as the defender of the Constitution?

– How does the unwritten constitution help preserve our system of government?

– The Unwritten Constitution

– Why can the Constitution be referred to as a “living” document?

UNIT ONE – THE FOUNDATIONS OF THE CONSTITUTION

Lesson 1 – Colonialism

Lesson 2 – The Foundations of Democracy

Lesson 3 – The American Revolution Begins – More notes on the Revolution

Lesson 4 – The Declaration of Independence

Lesson 5 – The Articles of Confederation

UNIT TWO – THE CONSTITUTION