1. Chapter 2 The Constitution

2. Copyright © 2011 Cengage The Challenge How to create a government which protects individual liberty yet has enough power to keep order.

3. Copyright © 2011 Cengage The Challenge “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” James Madison, Federalist #5 1

4. Copyright © 2011 Cengage The Problem of Liberty The Colonial Mind Natural law: People have the unalienable rights of life, liberty and property (“pursuit of happiness”). Natural law: People have the unalienable rights of life, liberty and property (“pursuit of happiness”). Men will seek power because they are ambitious, greedy and easily corrupted. Men will seek power because they are ambitious, greedy and easily corrupted. Declaration of Independence cited King George III for violating the unalienable rights of the colonists. Declaration of Independence cited King George III for violating the unalienable rights of the colonists.

5. Copyright © 2011 Cengage The Problem of Liberty The Real Revolution was the radical change in belief about what made authority legitimate and liberties secure The “real” revolution was the radical change in belief about what made authority legitimate and liberties secure. consent of the governed Government exists by consent of the governed, not by royal prerogative. Political power exercised by direct grant of power in a written constitution.

6. Copyright © 2011 Cengage The Problem of Liberty The Real Revolution A legitimate government must be one: In which authority is derived from the consent of the governed. That protects natural rights

7. Copyright © 2011 Cengage The Problem of Liberty Articles of Confederation “League of Friendship,” not a national Union. “League of Friendship,” not a national Union. Based on great concern about: Based on great concern about: Power of governmentPower of government Preservation of individual libertyPreservation of individual liberty State sovereignty and independenceState sovereignty and independence Many leaders of the Revolution were concerned about the weakness of government under the Articles. Many leaders of the Revolution were concerned about the weakness of government under the Articles.

8. Copyright © 2011 Cengage The Problem of Liberty Weaknesses 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 chosen and paid by state legislatures. 6.Little money coined by Congress. 7.Army small and dependent on independent 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.

9. Copyright © 2011 Cengage The Constitutional Convention Mural by Barry Faulkner Courtesy of the National Archives and Records Administration, Washington, D.C. The first attempt to correct deficiencies of the Articles – the Annapolis Convention – was not well-attended. A second meeting was set for May, 1787 in Philadelphia. The convention was only authorized to make modifications to the Articles, but ended up designing a new government.

10. Copyright © 2011 Cengage The Lessons of Experience: State Constitutions a) Pennsylvania: radically democratic, but trampled minority rights—government was too strong b) Massachusetts: less democratic: directly elected governor, but electors and officials had to own property; clear separation of powers The Constitutional Convention

11. Copyright © 2011 Cengage The Lessons of Experience: Shays’ Rebellion The Constitutional Convention Brought fear that states were about to collapse from internal conflicts.

12. Copyright © 2011 Cengage The Constitution and Democracy The Framers did not intend to create a direct democracy The Framers did not intend to create a direct democracy Physical impossibility in a vast country. Physical impossibility in a vast country. Founders also mistrusted popular passions and were concerned about security of minority rights. Founders also mistrusted popular passions and were concerned about security of minority rights. Intended instead to create a republic, a government by representation Intended instead to create a republic, a government by representation

13. Copyright © 2011 Cengage The Constitution and Democracy Popular rule was limited 1.State legislators to elect senators 2.Electors to choose president 3.Two kinds of majorities: voters (for example, the House of Representatives) and states (for example, the Senate) 4.Judicial review another limitation on power, though one not necessarily intended by Founders 5.Amendment process

14. Copyright © 2011 Cengage The Constitution and Democracy Key principles 1. Separation of powers: among branches of the national government 2.Federalism: power divided between national and state governments

15. Copyright © 2011 Cengage The Constitution and Democracy Three categories of powers Enumerated powers: given exclusively to the national government; include power to print money, declare war, make treaties, conduct foreign affairs Enumerated powers: given exclusively to the national government; include power to print money, declare war, make treaties, conduct foreign affairs Reserved powers: given exclusively to the states; include power to issue licenses and to regulate commerce wholly within a state Reserved powers: given exclusively to the states; include power to issue licenses and to regulate commerce wholly within a state

16. Copyright © 2011 Cengage The Constitution and Democracy Three categories of powers Concurrent powers: shared by both national and state governments; include collecting taxes, building roads, borrowing money, establishing courts Concurrent powers: shared by both national and state governments; include collecting taxes, building roads, borrowing money, establishing courts

17. Copyright © 2011 Cengage The Challenge you must first enable the government to control the governed; and in the next place oblige it to control itself “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” James Madison, Federalist #5 1

18. Copyright © 2011 Cengage The Challenge: Virginia Plan Strong national government organized into three branches Strong national government organized into three branches Bicameral legislature Bicameral legislature Executive and members of the national judiciary to be chosen by legislature Executive and members of the national judiciary to be chosen by legislature “Council of revision” (executive and some judiciary branch members) with veto power; legislature could override the veto “Council of revision” (executive and some judiciary branch members) with veto power; legislature could override the veto Two key features of the plan: Two key features of the plan: a)National legislature with supreme powers b) One legislative house elected directly by the people

19. Copyright © 2011 Cengage The Challenge: New Jersey Plan Submitted as alternative to Virginia Plan Submitted as alternative to Virginia Plan Sought to amend rather than replace the Articles of Confederation Sought to amend rather than replace the Articles of Confederation Protected small states’ interests while enhancing power of national government. Protected small states’ interests while enhancing power of national government. Generated from a fear that legislative representation would be based on population, allowing the more populous states always to outvote the less populous states Generated from a fear that legislative representation would be based on population, allowing the more populous states always to outvote the less populous states Unicameral legislature Unicameral legislature Proposed one vote per state, so Congress would be the creature of the state governments Proposed one vote per state, so Congress would be the creature of the state governments

20. Virginia vs. New Jersey plans May 29: Virginia plan proposed by Madison. May 29: Virginia plan proposed by Madison. June 15: New Jersey plan proposed by Patterson. June 15: New Jersey plan proposed by Patterson. July 2: Convention deadlocked on issue of representation. Small states discontented; some threatened to withdraw their delegations. July 2: Convention deadlocked on issue of representation. Small states discontented; some threatened to withdraw their delegations. July 5: Committee of one delegate from each state submitted report to the convention. July 5: Committee of one delegate from each state submitted report to the convention. July 16 – the Great Compromise passes. July 16 – the Great Compromise passes.

21. Copyright © 2011 Cengage The Challenge: The Great Compromise House of Representatives based on population and directly elected by people House of Representatives based on population and directly elected by people Senate composed of two members per state and elected by state legislatures Senate composed of two members per state and elected by state legislatures Reconciled interests of large and small states—the former would dominate the House of Representatives, the latter would dominate the Senate Reconciled interests of large and small states—the former would dominate the House of Representatives, the latter would dominate the Senate

22. The Ratification Debate Federalists “nationalists” Supported Constitution Leaders: Madison, Washington Antifederalists ”states’ righters” Opposed Constitution Leaders: Patrick Henry, Samuel Adams

23. The Antifederalist View most concerned with liberty State conventions were most concerned with liberty, not democracy. liberty could only be secured in a small republic Antifeds believed liberty could only be secured in a small republic. Leaders had to be close to those they governed. A strong national government would be distant from the people and would usurp the power of the states. Antifeds preferred a loose confederation among the states.

24. Patrick Henry: Leader of the Anti-Federalists HE PREDICTED THAT THE CONSTITUTION WOULD LEAD TO: heavy federal taxes a standing army difficulty amending the Constitution claims by Congress that the Constitution grants implied legislative powers the eventual liberation of the slaves “We shall have a king: the army will salute him monarch…What will then become of you and your rights? Will not absolute despotism ensue?”

25. The Antifederalist View: Bill of Rights Needed Antifeds felt that further limitations should be placed on a national government. prior to ratification Some insisted that a Bill of Rights be added prior to ratification. Framers felt that rights were adequately protected by the original Constitution.

26. Liberties protected by original Constitution habeas corpus Right of habeas corpus bill of attainder No bill of attainder ex post facto 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 Habeus corpus Habeus corpus – the right to be brought before a judge to decide whether imprisonment is legal. Bill of attainder Bill of attainder – criminal conviction w/o trial by vote of a legislature. Ex post facto law Ex post facto law – law making a past action illegal and punishing a person for it.

27. Ratification Ratification of the Federal Constitution by State Conventions, 1787-1790, DateStateVote (Y-N) Dec. 7, 1787Delaware30-0 Dec. 12, 1787Pennsylvania46-23 Dec. 18, 1787New Jersey38-0 Jan. 2, 1788Georgia26-0 Jan. 9, 1788Connecticut128-40 Feb. 6, 1788Massachusetts187-168 March 24, 1788Rhode Island (popular referendum) 234 - 2,708 April 28, 1788Maryland63-11 May 23, 1788South Carolina149-73 June 21, 1788New Hampshire57-47 June 25, 1788Virginia89-79 July 26, 1788New York30-27 Nov. 21, 1789North Carolina194-77 May 29, 1790Rhode Island34-32

28. Election of delegates began in March, 1788. Convention began June 2, vote to ratify taken on June 25. New Hampshire became ninth state to ratify on June 21, but Virginia delegates were unaware (no Twitter). Virginia delegates felt that their decision would make or break the Constitution. Leading Federalists: Madison, Washington Leading Anti-feds: Henry, Mason Ratification in Virginia Briceland article

29.  Legitimacy:  Legitimacy: Source of power should be states, not “the people” (nationally).  New Constitution created a national, not federal government. (Henry: “This government is not a Virginian, but an American government.”) threat to individual liberty.  Constitution was a threat to individual liberty.  Creation of government was illegal (Philly convention did not have authority to write new Constitution.) Ratification in Virginia Antifederalist complaints Briceland article

30. Madison believed that Antifederalists would be appeased, and ratification secured, by the offer of a Bill of Rights. Madison believed that Antifederalists would be appeased, and ratification secured, by the offer of a Bill of Rights. “ amendments” or “ amendments?” “Previous amendments” or “subsequent amendments?” Delegates voted down twenty amendments offered as a condition for ratification. (Y=80, N=88) Delegates voted down twenty amendments offered as a condition for ratification. (Y=80, N=88) Voted 89-79 for ratification with recommendation for “subsequent amendments.” Madison introduced twelve amendments in the First Congress. (House quorum achieved April 1, 1791; amendments introduced June 8; sent to states September 25; ratified December 15) Ratification in Virginia “The Deal” Briceland article

31. Copyright © 2011 Cengage The Motives of the Framers: Economic Interests In 1913, Charles Beard published An Economic Interpretation of the Constitution. His thesis: Some of the Framers expected to benefit economically from the outcome of the Constitutional Convention.

32. Copyright © 2011 Cengage The Motives of the Framers: Economic Interests Beard’s theory has not stood up to scrutiny. Economic interests of Framers varied widely. Economic interests did not dominate debate at the convention. Historical studies in the 1950s found no division along class lines. Data studied in the 1980s suggests that state economic interests outweighed the personal consideration of the Framers.