Constitutional Underpinnings The Articles of Confederation vs. The Constitution

Articles of Confederation (1781-1789) First constitution of the United States. Written in 1777 Ratified (i.e. officially approved) by all colonies in 1781.

Articles of Confederation (1781-1789) Confederation Congress Unicameral legislature was the only branch of national government. One vote per state, regardless of population. Congressmen elected once a year.

Articles of Confederation (1781-1789) Confederation Congress laws required approval of 9 out of 13 states. Amendments required unanimous vote. Weak president was member of Confederation Congress and elected once a year. No separate executive branch.

Articles of Confederation (1781-1789) Confederation Congress could: Declare war Enter into treaties with foreign nations Borrow and print money Ask for revenue from the states Command an army in case of armed conflict

Articles of Confederation (1781-1789) Confederation Congress could NOT: Collect taxes Regulate commerce between states or between states and foreign countries Draft soldiers to raise an army Interfere with the internal affairs of any of the states

Articles of Confederation (1781-1789) States could: Print their own money Enact tariffs on imports from other states Retain “sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not . . . expressly delegated to the United States, in Congress assembled.”

Road to the Constitution Annapolis Convention (1786) Only five states sent delegates James Madison and Alexander Hamilton pushed for convention to revise Articles of Confederation Decided to reconvene 1787 in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”

Compromises at the Constitutional Convention, 1787 Debate over Representation Equality of states? Should states be represented equally or in proportion to their population? Small states vs. larger states

Compromises Legislature with two houses (bicameral) Proposal: Virginia Plan, or Large state plan (James Madison) Legislature with two houses (bicameral) Members of upper house selected by the lower house Representation in the legislature based on population.

Compromises Proposal: New Jersey Plan, or small state plan (William Paterson) One legislative house (unicameral) in which each state had an equal vote.

Compromises Connecticut or Great Compromise Proposed by Roger Sherman of Connecticut Combined the two proposals House based on population Senate-equal repre-sentation

Compromises Free states vs. slave states How should slaves be counted in determining number of representatives in the House of Representatives? Free states vs. slave states 3/5 Compromise—3/5 of a state’s slave population could count toward total population

Compromise Will citizens be able to wisely choose the President? The electoral college was a compromise— Citizens will vote on electors in their own states, who will then cast the state’s votes for the presidential candidate

Should the Constitution be ratified? Anti-Federalist view: 1. Liberty could be secure only in small republics a) National government too distant from people b) National government would destroy states 2. Preferred confederation, with strong state government vested in state legislatures Not enough restrictions on national government in proposal-national government too powerful No individual Bill of Rights 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. Nation needed, at best, a loose confederation of states with most of the power wielded by the state legislatures 3. If there was a strong national government, there should be many more restrictions on it

Did We Need a Bill of Rights? Federalist view--several guarantees in body of the Constitution Habeas corpus No bill of attainder No ex post facto law Trial by jury in criminal cases Citizens of each state guaranteed the privileges and immunities of citizens of every other state No religious tests for federal office No state could pass a law impairing the obligation of contracts Intent of Constitution–limit federal government to specific powers Also, most states already had Bills of Rights Habeas corpus literally means “show the body”; person must be present to be charged or tried for a crime. This question came up in recent terrorism cases; supreme court upheld the restrictions on the federal government embodied in habeas corpus legislative act declaring that a person is guilty of a crime and setting punishment without the benefit of a formal trial. After the fact; cannot make something a crime after someone has done it; Kevorkian example

Compromise 1. Ratification impossible without Bill of Rights 2. Promise by key Federalist leaders to obtain a bill of rights under first Congress 3. All states eventually ratified the Constitution by 1789 4. Twelve amendments approved by Congress; 10 ratified by the states and went into effect in 1791-the Bill of Rights Stay here on 8/28 Madison honors his promises

Amendment Process Article V sets forth the procedures for amending the Constitution. Constitutional amendments can be proposed either: By passage in the House and Senate by a two-thirds vote or By passage in a national convention called by Congress in response to petitions by two-thirds of the states

Amendment Process Constitutional amendments can be ratified either: By acceptance by majority vote in the legislatures of three-fourths of the states By acceptance by conventions called for the purpose of ratifying in three-fourths of the states

Federalist 51: James Madison Divide government into separate and distinct branches that will keep each branch in its proper place (separation of power) Each branch will “check” the others (checks and balances) The legislative branch has a tendency to dominate; thus, it should be divided into separate Houses (bicameral) Each department should be the least dependent as possible on the others Enable government to control the governed Enable government to control itself

Key Principles of Representative Democracy in America Limited Government Three categories of governmental powers Enumerated (delegated) powers Reserved powers Concurrent powers Separation of powers Federalism Checks and balances Popular Sovereignty Judicial Review Three categories of governmental powers a) Enumerated powers: given to the national government exclusively; include power to print money, declare war, make treaties, conduct foreign affairs b) Reserved powers: given exclusively to the states; include power to issue licenses and to regulate commerce wholly within a state c) Concurrent powers: shared by both national and state governments; include collecting taxes, building roads, borrowing money, having courts

The Constitution Compared to the Articles of Confederation, the Constitution: Increased the power of the central government through: Commerce and finance powers National judicial supremacy Stronger executive branch

The Constitution Sought to curb “excessive” democracy Congress based on representation –population and equal representation (representative democracy) Electoral College Limited the potential for government abuse Bill of Rights Separation of powers Federalism