The Founding and the Constitution Chapter 2

The Founding and the Constitution Chapter 2

The Government That Failed 1776 -1787 n Articles of Confederation – “the United States was a confederation, a league of friendship and perpetual union among 13 states” n n n 1 st Constitution of US enacted in 1781 Created a national legislature, the Continental Congress with 1 house No president, no national court Most power rested with State legislatures Weak national government Why? No amendments w/out unanimous approval

Why Strong Central Government Matters n n Regulation of interstate commerce: allows for creation of large national economic market President is allowed to conduct vigorous foreign policy Federal courts have authority to protect rights such as civil Federal government would be able to collect money for things like social security, defense

The Second Founding: From Compromise to Constitution n Declaration of Independence and Articles could not hold the nation together. Almost immediately upon the armistice in 1783 moves were being made to reform and strengthen the Articles.

International Standing and Balance of Power n n Concern for the country’s international position was important. Competition between states foreign commerce allowed the European powers to play each state off each other, creating confusion on both sides of Atlantic. British in 1786, told John Adams that since the US under the Articles could not enforce treaties, Britain would negotiate with each state separately. At same time, well to do Americans ( the pre war political establishment – New England merchants and Southern Planters) were troubled by the influence that “radical” forces were exerting in the Continental Congress and in several states. Afraid of their political and economic policies.

Goals of the Delegates n n Hoped to benefit economically and politically by breaking the power of their radical foes Hoped to create a government more compatible with their long term economic and political interests. n n n Hoped to free national government from the power of individual states Hoped to promote commerce and protection of property from radical state legislatures Hoped to protect the interests of the commercial and propertied classes

The Great Compromise n Virginia Plan – Edmund Randolph of Virginia (May 29, 1787) n n New Jersey Plan – William Patterson n n Proportional representation (heavily favored the large states) Equal representation per state (favored smaller states) Connecticut Compromise n n H or Rep – proportional representation Senate – equal representation

The Question of Slavery The 3/5 Compromise n n n Madison believed this was the big issue of the Convention – differences between north and south NOT size of state for representation. 3/5 Compromise: slaves would be counted as 3/5 of a person (5 slaves would count as 3 persons) n Biggest concern is not over the institution of slavery but how much slaves would count towards the states representation 3/5 clause recognized slavery’s right to exist and rewarded slave owners with greater political power. Yet, it kept the South from voting against the Constitution Also agreed to allow slave trade for 30 years and a fugitive slave law

The Constitution n Wanted to create a government that included: n National Supremacy: strong enough to promote commerce and protect property from radical state governments n (national control over finance and commerce, strong national judiciary and a strong executive) n Separation of powers: Bicameralism: division of Congress into two chambers; checks and balances; staggered terms of office; electoral college n Sought provisions that would secure support: direct popular election of representatives, addition of the Bill of Rights

The Legislative Branch n n n First 7 sections of Article 1 2 Chambers: House and Senate House: n n 2 year terms, directly elected Senate: n n 6 year terms, appointed by State Legislatures (later changed to direct election – 17 th Amendment 1913), terms staggered so 1/3 expired every 2 years. Tasks: approval of both houses to enact a law; Senate given power over ratifying treaties and appointments; House given power to originate revenue bills.

Legislature Continued: n n House: to be directly responsive to the people, giving more support for the Constitution and new government. (Seen as potential radical threat) Senate was a check on the “excessive democracy” of the House by longer terms, staggered terms, and not directly elected.

Further Controls on Power of Federal Government n n Expressed Power: Constitution implied that any powers not listed, were not granted Necessary and Proper Clause: framers intended an active government so added this – (elastic clause) listed powers were to be a source of strength not weakness, so each power listed could be used and expanded as was necessary or proper for the needs of the country. However, no NEW powers could be assumed by the government without an amendment. Any powers not listed were assumed to be reserved for the states. Limits on Congress are found in Section 9 n n Habeas Corpus, slave trade, etc. Limits on State power in section 10

Executive Branch n n Framers hoped to create presidency that became the agent for immediate and decisive action on public issues and problems (not the states) Electoral College: sought to protect president from overly excessive political pressures.

The Executive Branch n n Article II: framers tried to make executive strong and give it independence Powers: n n n Accept foreign ambassadors (Power to recognize other countries) Negotiate treaties (Senate) Right to grant reprieves and pardons Convene Congress in special session Appoint major departmental personnel Veto Congressional actions (Override)

Judicial Branch n n Article III: concerned with nationalizing governmental power, checking radical democratic impulses, while guarding against corruption and tyranny from the federal govern. Created a Supreme Court of the land. n n Power to resolve any conflicts between federal and state laws. Power to decide whether a power was exclusive to the federal government, shared with the states or exclusive to the states.

Judicial Branch n n Jurisdiction over problems between citizens of different states (long term effect – as country developed a national economy, federal courts seen as place to settle disputes, not states) Federal judges given lifetime appointments to protect them from popular politics and the other branches. Judges appointed by President and confirmed by Senate Congress could create lower federal courts, change the jurisdiction of federal courts, add or subtract federal judges, even change the size of the Supreme Court.

Judicial Review n n Power of the courts to render the final decision when there is a conflict of interpretation of the Constitution or of laws between the courts and Congress, the courts and the executive branch, or the courts and the states. No mention was made in the Constitution of this power; it came later in a court case – Marbury v Madison(1803)

National Unity and Power n n n Article IV: framers instilled provisions of reciprocity among states and citizens of all states. Each state prohibited from discriminating against the citizens of other states in favor of its own citizens. This restriction of state power in favor of the national government was designed to give the country a free flow of national trade (Interstate Commerce)

Supremacy Clause n n Article VI: framers concerned with national supremacy – included the Supremacy Clause -- provided that national laws and treaties shall be the supreme law of the land. Meaning: all laws made by US government were superior to all laws adopted by any state or subdivision. Direct effort to keep the states from dealing directly with foreign powers

Amending the Constitution n n Article V: Constitutional provisions for its own revision or change. Very difficult; only 17 times Requires 2/3 of Congress then ¾ of the states. Or Constitutional Convention

Ratifying the Constitution n n Article VII: 9 state rule for ratification (out of 13) Violated the rules of Articles which said it must be unanimous ratification. Also, ratification must be done in special state conventions called for that purpose, not in the normal state legislature.

Constitutional Limits on the National Governments Power n n Framers wanted a strong national government but, they also wanted to control the misuse of that power To do this they added provisions: n n n Separation of Powers n Montesquieu (1689 – 1755) n 3 separate and distinct branches of government n Different methods of selecting the top personnel, so each branch is responsible to different constituencies n Checks and balances (power over each other) Federalism n Greater centralization of power n More power to national without making states meaningless n Result: two sovereigns – the state and nation Bill of Rights (added to ensure ratification)

Changing the Institutional Framework: Constitutional Amendment constitution over Article V: framers recognized need to change time. (but very difficult) Only 29 have been officially proposed, 27 eventually ratified, first 10 were Bill of Rights, so only 17 have been adopted. Methods of Amendment: 1. passage in House and Senate by 2/3 vote; then ratification by vote of legislators of ¾ of the states (38) 2. passage in House and Senate by 2/3 vote; then ratification by conventions called by ¾ of the states 3. National Convention called by Congress in response to call by 2/3 of states; then ratification by ¾ of states 4. Passage in national convention; ratification by conventions called by ¾ of states

The Meaning of the Amendments n n n First 10: to give the 3 branches clearer and more restricted boundaries (1791) First Amendment: made the restriction clear: “Congress shall make no law…. ” 2 nd, 3 rd, 4 th – Limits on executive branch 5 th, 6 th, 7 th and 8 th – Limits on the courts 9 th and 10 th – Limits on National Government

Amending the Constitution to Expand the Electorate n n n XIV – national definition of citizenship (1868) XV – Extended voting rights to all races (1870) XIX – Extended voting rights to women (1920) XXIII – Extended voting rights to residents of the District of Columbia (1961) XXIV – Extended voting rights to all classes by abolition of poll taxes (1964) XXVI – Extended voting rights to citizens aged 18 and over (1971)

n n n Amending the Constitution to Change the Relationship between Elected Offices and the Electorate XII – Provided for separate ballot for vice president in the electoral college (1804) XIV – Section 2 eliminated counting of slaves as “ 3/5” citizens for apportionment of House seats (1868) XVII – Provided direct election of senators (1913) XX - Eliminating “lame duck” session of Congress (1933) XXII - Limited Presidential term (1951) XXV – Provided presidential succession in case of disability (1967)

Amending Constitution to Expand or Limit the Power of Government n n n XI Limited jurisdiction of federal courts over suits involving the states (1798) XIII Eliminating slavery and eliminated the rights of states to allow property in persons (1865) XIV – (Part 2) Applied due process of Bill of Rights to states (1868) XVI – Established national power to tax incomes (1913) XXVII – Limited Congress’s power to raise its own salary (1992)

Only Attempt to Legislate through Amendment n n XVIII – Prohibition XXI – Repeal of prohibition