THE CONSTITUTION READINGS

1.3 John Roche, “The Founding Fathers: A Reform Caucus in Action” The Founders “were first and foremost superb democratic politicians.” Roche sees federalism as a compromise necessary to ensure support in the state ratifying conventions. Hamilton and Madison were “inspired propagandists.”

National legislature with supreme powers. John Roche, cont. The Virginia Plan was the central framework of discussion at the Constitutional Convention. Features: National legislature with supreme powers.

John Roche, cont. Bicameral legislature with one legislative house elected directly by the people. Executive and members of the national judiciary chosen by the legislature. “The national government would be thus cut completely loose from the states.”

1.4 James Madison, The Federalist, No. 51 Federalist No. 51 contains Madison’s famous quotes justifying the separation of powers and checks and balances. The Framers feared the concentration of power because of the possibility of tyranny. The separation of powers has two major features. First, separate powers were granted to legislative, executive, and judicial branches.

Congress: deliberation and popular will James Madison, cont. Madison believed that Certain types of powers were best exercised by different branches, because each branch has special qualities. Congress: deliberation and popular will President: energy or the capability for acting quickly and decisively Court: dispassionate judgment

James Madison, cont. “Decent laws are most likely to come from a representative body.” (Article I) “Administration is best performed by a single executive.” (Article II) “Application of law to particular cases is best entrusted to a body of judges.” (Article III) Thus, each branch would be superior (although not the sole power) in its own sphere.

James Madison, cont. The second feature was to “give to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” These “constitutional means” are referred to as checks and balances, which exist to keep the branches within their constitutional limits. Examples?

James Madison, cont. EXAMPLES OF CHECKS AND BALANCES The Congress can refuse to approve presidential appointments and treaties (Senate only). Congress can reduce or eliminate appropriations for presidential programs. Congress can impeach and remove the President. The President can veto bills approved by Congress, delay executive appointments, or ultimately submit to impeachment proceedings.

James Madison, cont. Madison said that “in republican government, the legislative authority necessarily predominates.” He was especially concerned about the encroachments of the legislature against the other branches. The remedy was to “fortify” the other branches. It was also to divide legislative power between the House of Representatives and the Senate.

James Madison, cont. The separation of powers requires that constitutional officers vigorously perform the role of resisting the encroachments of the other branches. “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Therefore, in addition to “checks and balances,” constitutional officers were given different modes of election and different terms of office and hence different interests. There is no guarantee that officeholders will exercise their constitutional duties.

James Madison, cont. Congress has largely abdicated its constitutional role in foreign affairs. For example, the Constitution grants the Senate the power “to declare war.” Conclusion: From the Founders’ view, conflict between the branches is to be encouraged.

1. 5 Burt Solomon, “What Were They Thinking 1.5 Burt Solomon, “What Were They Thinking?” ELECTORAL COLLEGE: BACKGROUND Each state has as many electoral votes as it has U.S. Senators and representatives. The Constitution leaves it up to the states to determine how electors are chosen. Today, the state parties select slates of electors. Aside from Maine, each state has a winner-take-all system. Electors vote as a bloc for the candidate with a plurality of the state’s popular vote.

ELECTORAL COLLEGE: BACKGROUND, cont. If no candidate receives an electoral college majority, then the election is thrown into the House of Representatives. Each state delegation has one vote. BIAS OF ELECTORAL COLLEGE: Provided that the election is not thrown into the House, it gives extra clout to the big states. The winner-take-all rule means that winning big states is more important than piling up big leads in small states.

Burt Solomon, cont. He describes the rationale of the Framers for establishing the Electoral College. First there was support for allowing the Congress to choose the president. Some delegates proposed allowing direct election of the president.

Burt Solomon, cont. Many of the Framers believed that the Electoral College would not actually elect the president; rather it would narrow the field of presidential candidates for the House of Representatives to choose from. The Framers did not envision the emergence of a two-party system, which makes it likely that a candidate will win a majority of electoral votes.

Burt Solomon, cont. The 12th Amendment (1804) required electors to cast separate ballots for president and vice president. Election of 1800 – Adams is defeated by Jefferson. But both parties ran two people. After 36 ballots, Congress chose Jefferson over Burr. Solomon concludes that “the conditions that gave rise to the Electoral College are gone.” Has the institution lost its relevancy?

Question for Discussion If we had a constitutional convention today, what kind of system would we choose to select the president? Why?