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Chapter 2 Constitution Sources of the Constitution I. British customs and traditions, e.g. Magna Carta and English Bill of Rights A. [yet only 4% of Englishmen had suffrage in late 18th C.] ...here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it. --Winston Churchill, 1956 II. Colonial experiences, e.g. power of elected assembly When Englishmen left their homeland to establish colonies in the New World, they brought with them charters guaranteeing that they and their heirs would "have and enjoy all liberties and immunities of free and natural subjects." Scant generations later, when these American colonists raised arms against their mother country, they were fighting not for new freedoms but to preserve liberties that dated to the 13th century. III. Colonial Charters and State Constitutions Signing of the Mayflower Compact IV. Experience under the Articles of Confederation (and weakness thereof) What astonishing changes a few years are capable of producing! I am told that even respectable characters speak of a monarchical form of government without horror. From thinking proceeds speaking, thence to acting is often but a single step. But how irrevocable & tremendous! What a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal & falacious! Would to God that wise measures may be taken in time to avert the consequences we have but too much reason to apprehend. -George Washington, letter to John Jay August 15, 1786 II I. The real revolution radical change in belief about what made authority legitimate II. government by consent [social contract] III. written constitution with its direct grant of power IV. legislative superiority over executive branch Constitutional Convention, 1787 I. Background A. Declaration of Indep. Rev. War Articles of Confederation & its weakness What were the weaknesses of the Articles? B. C. Annapolis Convention, 1786 called to improve the Articles poor attendance Shays' Rebellion, 1786 became clear that the Articles of Conf. needed to be altered Constitutional Convention: Delegates I. Characteristics: "well-read, well-fed, well-bred, well-wed" The big names II. A. B. C. D. E. F. Madison: "Father of the Constitution"; leadership, detailed notes of proceedings, Federalist Papers Washington: presiding officer Franklin: elder statesman Morris: largely responsible for final wording Hamilton: most forceful advocate for strong central government others? Constitutional Convention: Areas of agreement 1. 2. 3. 4. 5. 6. 7. 8. Virginia Plan became agenda scrap the Articles of Confederation establish a republican government establish a constitutional government establish a balanced government where no single interest dominates suffrage for property owners only stronger central government protection of property rights keep the proceedings secret Constitutional Convention: Disagreement & Compromise I. Representation among the states: The Great Compromise (Connecticut Compromise) A. large states favored the Virginia Plan 1. B. bicameral legislature: both houses based on state population small states favored the New Jersey Plan 1. C. No change to Articles of Confederation, unicameral legislature: each state gets one vote Connecticut Compromise: 1. 2. 3. bicameral legislature popularly-elected House (based on population) Senate (equal rep.) elected by the state legislatures Senate election process changed after the ratification of the 17th amendment Ratification process I. Federalists A. views: 1. 2. B. feared excesses of democracy favored strong central government and government by competing elites (Madison in Federalist 10). Hamilton, Madison, Washington, Jay. Ratification Process I. Antifederalists A. views: 1. 2. B. feared concentration of power in elites, strong central government (favored states), and lack of a Bill of Rights. Believed government should be closer to the people. Henry, Mason, Gerry and Jefferson Ratification Process I. Federalists' advantage A. B. C. D. better represented in state legislatures controlled the press quick ratification process before Antifeds. can get organized agreed to a Bill of Rights, but not originally, Why? Why was the Bill of Rights an afterthought? I. many Constitutional guarantees--habeas corpus, no ex post facto laws, no religious test for office, no bill of attainder etc. II. most states had Bill of Rights III. the Constitution was intended to limit specific powers of the federal gov. IV. forgotten rights--fear of not listing all rights-Madison A. note: Bill of Rights did not require all states for ratification, Georgia waited until 1939 Federalist Papers Madison, Hamilton, and Jay To rally support for the ratification of the Constitution. Need to know: Fed 10 Fed 51 Fed 78 Principles of the Constitution I. Federalism II. Limited government III. Separation of Powers IV. Checks and Balances V. Judicial Review A. Marbury v. Madison, 1803 Principles of the Constitution A. Federalism: Dividing power between the states and the national government 1. 2. 3. enumerated powers example: Article 1, Section 8 Coin money, conduct foreign relations, declare war, establish courts, provide army and navy reserved powers ex.: conduct state elections, Ratify amendments to the federal Constitution, Establish local governments concurrent powers ex.: tax, borrow money, establish courts, make and enforce laws Principles of the Constitution, cont’d A. Limited government 1. Federal government has only those powers listed in Constitution 2. Bill of Rights--safeguard against possible tyranny from a new, strong, distant government. Fear of state governments too? Principles of the Constitution, cont’d I. Separation of Powers 1. Tyranny was government that controlled all 3 branches a. b. division of power between executive, legislative, and judicial branches was necessary—Madison Division and competition forces congress to check itself “You better check yo self, before you wreck yo self.” –Ice Cube Checks and Balances Principles of the Constitution, cont’d A. Checks and Balances 1. 2. system of restraints Example: veto, override, appointment and confirmation, treaty-making and ratification, defense funding and Commander-in Chief. 3. Political independence within each branch: including not being dependent upon the other two for election (OK the Court, but confirm by Senate + life term) 4. Staggering of terms of each branch 5. Levels of gov’t could serve as checks on each other a. Factions, groups with distinct political interests, would b. balance the system. Coalitions (alliance of factions) would be necessary to rule, argues Madison in Federalist 51, but they would be moderate because of the variety of factions included Principles of the Constitution, cont’d A. Judicial Review 1. 2. 3. Power of courts to strike down laws or government actions Not explicitly provided for (Constitution written in broad terms)--leads to need for interpretation--most logically falls to the courts established by Marbury v. Madison, 1803. a. Opinion: the Court, NOT Congress had the power to review acts of Congress More disagreement and compromise I. The Constitution and Slavery A. Slavery-representation and taxation 1. 2. 3. 4. B. Representation (the House) & taxation-3/5 Compromise (note: 3/5 would yield approximately equal representation in northern & southern states) Congress could not prohibit importation until 1808 Fugitive slave clause So why was slavery not banned? Legacy? More disagreement and compromise I. Election of the President A. Life term v. annual elections compromise? B. method: 1. election by Congress 2. by state legislatures 3. directly by the people C. Compromise Electoral College How is this a compromise? Changing the Constitution formally I. Legacy of Articles: A. desire to make amendment process easier, but not too easy. II. Reasons for proposing amendments A. B. dissatisfaction by interest groups with court decisions Gridlock in Congress Formal Amendments Process of amending reflects federal system. What does that mean? I. A. Proposal 1. 2. 2/3 vote in both houses (all done this way) Convention called by Congress at request of 2/3 states a. b. B. never done this way fear of "runaway" convention Ratification--2 methods 1. 2. 3/4 of state legislatures--all but the 21st done this way Ratifying conventions in 3/4 of the states a. more democratic this way? Changing the Constitution informally I. Due to difficulties of formal changes, informal ways developed A. B. C. D. Acts of Congress--Judiciary Act of 1789 (est. federal court system) Judicial rulings-- Brown v. Board, Roe v. Wade etc. Presidential actions-- police actions, executive privilege, and impoundment. Customs and traditions--Cabinet, political parties, committee system in Congress, senatorial courtesy, legislative veto, pres. nominating conventions. The End! Thanks for hanging in there!