we the people: unit 1. what are the philosophical and historical foundations of the american...

We the People: Unit 1

What are the Philosophical and Historical Foundations of

the American Political System?

Unit 1 Topic:

What does Unit 1 Cover?

• Ancient and Enlightenment Philosophy (plus more)

• English roots of American constitutionalism

• The colonial period and the early state constitutions

• How all of these apply to the actual function of our government

Constitutionalism in the Founding of the United States

Statements by scholars about the meaning of constitutionalism:

• “Constitutionalism has one essential quality; it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.”

-Charles Howard McIlwain, Constitutionalism: Ancient and Modern

Statements by scholars about the meaning of constitutionalism:

• “Constitutionalism: the limitation of the power of those in public office by a set of rules unalterable by the rulers.”

-Willi Paul Adams, The First American Constitutions

Statements by scholars about the meaning of constitutionalism:

• “American constitutionalism is based on an analogy between a constitution and ordinary law. Just as it is desirable to restrain and empower individuals by subjecting them to the rule of law, so it is desirable to restrain and empower the state. The idea of conducting government under law is the core of American constitutionalism.”

-Stephen M. Griffin, American Constitutionalism

Statements by scholars about the meaning of constitutionalism:

• “Constitutionalism is…a form of governance that controls the power of the state and protects the liberty of the citizenry.”

-Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today

Statements by scholars about the meaning of constitutionalism:

• “The legitimacy of American constitutionalism rests on its aspiration to subject political power over time to the reasonable egalitarian requirements that it respect inalienable rights and secure the public interest. Constitutional law was framed both to secure that certain rights of the person would remain immune from political bargaining, and that the democratic political process should be structured in ways likely to pursue the common interests of all.”

-David A.J. Richards, Foundations of American Constitutionalism

Key elements of constitutionalism:

• •

The Declaration of Independence: How is it about constitutionalism?

•

The Original Constitution: How is constitutionalism achieved/ not achieved?

•

According to the reading, what were the major dilemmas with constitutionalism?

Two Problems of Constitutionalism: Ordered Liberty

• What would a state with only order look like?

• What would a state with only liberty look like?

• Ordered liberty is the balance between the two

Two Problems of Constitutionalism: Ordered Liberty

• Who determines what this means?

• Asked to look at policies- The question is whether a claimed right is “implicit in the concept of ordered liberty?”

Two Problems of Constitutionalism: Ordered Liberty

• Incorporation!!!!

• In re Winship (1970)

Two Problems of Constitutionalism: Majority Tyranny

• Majority holds its own interests to be most important and ignores or tramples on minority rights

• How is this addressed in our government