The Constitutional Framework (and related concerns)

References:Cummings and Wise, Democracy Under Pressure

Fiorina, Peterson, and Voss, America’s New Democracy

U.S. Constitution

Political Philosophical Foundations

Pre-constitutionalHistory

Structure and KeyFeatures of the

Constitution

Political Philosophical Foundations Key ideas:

State of nature Social contract Civil society Natural Rights Limited government Separation of powers

Thomas Hobbes John Locke Montesquieu Jean-Jacques

Rousseau Thomas Jefferson Thomas Paine James Madison

Hobbes. Locke, and Rousseau Thomas Hobbes - Leviathan

State of nature (absence of government) is “solitary, poor, nasty, brutish, and short” – a war of each person against all other persons; no physical security

We escape the state of nature via the social contract, i.e., an agreement to submit to the rule of a sovereign with authority to rule

Requires surrender of some liberties, yet results in freedom from fear, freedom from predation, freedom from theft

Consistent with the idea that citizens consent to be governed

John Locke - Second Treatise on Government Even in state of nature, man possesses certain natural rights (natural law

idea) – life, liberty, health, material possessions (ideas also included in the Magna Carta of 1215)

People are not, by nature, cruel; to the extent possible, they ought and are inclined to protect one another

In a state of nature, each person may punish others who transgress the law of nature (each person has executive authority )

Via social contract, we enter civil society and surrender our executive authority to government; government now authority to make and enforce laws, we get protection of our natural rights in return

In the context of civil society, freedom from both fear of theft and violation of our property rights encourages us to be productive, wealth-accumulating

Powers of government are limited (government may not do anything that it wishes)

Embraced separation of powers idea (this idea later extended by Montesquieu) is a key way of protecting liberties of citizens

Rousseau – The Social Contract State of nature is less severe than that described by

Hobbes (and Locke) – sees humans as social and naturally good

Modern world has robbed us of our natural tendencies toward caring for others. To recapture this, we must reject materialism and return to a more natural way of living (the modern world has caused us to value the wrong things)

Solution – create a civil society where people identify with one another (he is an idealist), establish a deep sense of mutuality and community (this is real freedom)

Montesquieu – The Spirit of the Laws Fully develops idea that powers of government

should be divided into legislative, executive, and judicial powers (extended Locke’s notion of separation of powers)

Important influence on Madison’s thinking

Thomas Jefferson Author of Declaration of Independence (1776)

Appeals to the moral foundations of the plan to sever ties with England

Preamble – natural law references (“…all men are…endowed by their creator with certain unalienable rights….”)

It is the duty of the colonists to free themselves from despotic rule

List of grievances against King George III (27 distinct complaints) – accuses British king of tyranny

Demands that the governed be allowed to choose those who govern them

Declaration of Independence continued…. British people are criticized for providing no comfort, no

relief to their persecuted brethren [“They too have been deaf to the voice of justice and consanguinity.”

Concluding paragraph Appeal to God for support and blessing of their aims Explicit severance with British Crown Pledge to one another [“…our lives, our fortunes, our sacred

honor.”] Remember – Jefferson’s reference to language used by

Locke [“life, liberty, and the pursuit of happiness.”] Clear concern for property rights

In Paris at time Constitution was drafted Feared powers of federal government and lack of

civil liberties protections in Constitution Jefferson is sympathetic with rural, farm culture

(as opposed to urban, New England culture) Yet, he believed that adoption of the Constitution

was an essentially good thing

Thomas Paine Author of Common Sense

http://www.historyplace.com/unitedstates/revolution/common.htm Government is consequence of man’s wickedness, evil intentions – things we acquire

as life gets easier, more comfortable in the modern world Direct democracy fails when population grows too large, pop. is geographically

disperse, and issues too complex Impressed by Whig idea of citizen participation in government as a check on the

authority of those in power Monarchy is an absurd way to govern Britain is no parent or protector of the colonies Our commerce with Europe will make her our ally, continued alliance with British will

only frustrate our trade relationships with other nations Reason requires us to separate from British Suggests that failure to join the side of independence is tantamount to cowardice

“Society in every state is a blessing, but Government, even in its best state, is a necessary evil; in its worst state, an intolerable one.”

Thomas Paine

James Madison Lineage in Virginia (like Jefferson) and its history of

constitutional recognition of individual liberties Read widely and prepared diligently for the constitutional

convention of 1787 Key influence on the development of the constitutional

framework Champion of separation of powers idea Vigorously advocated the idea of strong national

government (Federalist 10 and 51) Like others of his time, feared popular government and

direct democracy

Pre-constitutional history Colonial Experiences Articles of Confederation Drafting of the Constitution of 1787

Colonial Experiences Radical (for the time) principles emerging in pre-

revolutionary America – reflections of European political thought and experiences under British rule

Government by consent of the governed Separation of powers Citizen participation in government

Life Under British Rule 1620 – voyage to England’s Virginia Colony (ship arrives

in Massachusetts) Passengers create the Mayflower Compact (idea of

government by consent of the governed) Stamp taxes (1765) triggered protests and demands for

representation in Parliament (tax later repealed) Import taxes imposed on colonies

Triggers Boston Tea Party (1773) Uprising causes British to withdraw Massachusetts’s

charter, close it’s elected assembly First Continental Congress (1774) – calls for statement of

colonists’ rights and boycott of British goods

Second Continental Congress Acts to withdraw colonies from British rule (1776) Richard Henry Lee’s resolution – formal proposal to declare

independence Declaration of Independence (Jefferson) Appoints Geo. Washington as commander of the Continental Army

Revolutionary War (1776-1783) Ends in 1783 with signing of the Treaty of Paris States expanded range of electoral participation during the conflict;

reaffirmation of ideas that would later comprise the Constitution Note: after War, most states adopt constitutions that include bills of

rights

Articles of Confederation (1781-1789)

Weaknesses of plan (weak central gov’t) No executive branch, no national courts No means of compelling revenue from states Non common currency among the states States could exact tariffs on other nations and create

barriers with other states Unicameral Congress, equal rep. among states Congress with no power to regulate commerce Unanimity required for amendment (not once)

Drafting the Constitution of 1787 Background:

Annapolis Convention 1786: decision to meet in Philadelphia in May 1787 (Const. Convention)

1786 Shays Rebellion (Mass.) February 1787 – Congress approves plan to meet

in Philadelphia (to revise Art. of Confed.)

The Constitutional Convention 55 men (wealthy men, Washington presides,

Madison keeps record of debate) Debate and dissent in some instances,

bargaining and compromise common Madison’s separation of powers framework

becomes the basic blueprint Document signed by 39 delegates

Full scope of federal powers not addressed – this matter left to future generations

Silent on matter of judicial review Silent as to how federal officeholders are to be

chosen President’s cabinet not explicitly created

Key conflicts at Convention of 1787 Problem of representation in legislature:

Virginia Plan (large state plan) vs. New Jersey Plan (small state plan) = Connecticut Plan (Great Compromise), bicameral legislature

Problem of slave representation “three-fifths” compromise –Art. I of Constitution Otherwise, convention did not attempt to solve

the problem of slavery – avoiding conflict with the Southern delegation

Motives of the Framers Charles Beard, An Economic Interpretation of the

Constitution Many provisions reflect the interests of creditors,

landowners, and those with wealth in general In many ways, Framers feared direct democracy

Preferred a republic (representative democracy; see Federalist 10)

Structure and Key Features of the Constitution

Separation of Powers Art. I – legislative branch

Section 8 (express powers of federal gov’t) Clause 18 (necessary and proper clause) – foundation for

broad powers of federal gov’t Section 9 (basic protections for citizens)

Habeas corpus provision Also in Art. I – prohibition on bills of attainder, ex post

facto laws, statement that only Congress may appropriate money from Treasury

Article II The Executive Branch Office of President

Commander in chief Make treaties, (w/ senate approval), appt

ambassadors, judges (w/ senate approval) and call Congress into special session

Electoral college (no direct election of pres.) Majority vote required for a win (if no majority

occurs, House of Reps chooses president) Reflects Framers’ fear of popular government

Article III – The Judiciary Judicial review = principal policy making tool of the federal

judiciary practice is rooted in (but not explicitly addressed by):

(1) Article VI – Supremacy Clause (2) Art. III – S.C. has authority to resolve cases arising under

the Constitution Practice of judicial review in place in American states prior

to 1787 (Framers were familiar with the idea of jud. rev.) Framers considered adopting a Council on Revision

Marbury v. Madison (1803) did not create the practice of judicial review; decision announced that Sup. Court will exercise power of judicial review

Checks and Balances (examples) President – veto power (Congress may override

by 2/3 majority) Senate must confirm pres. appointments (such as

those to the fed. courts) Congress may react to court decisions by

changing the content of laws, contracting the jurisdiction of the lower federal courts

Federalism Powers of governments are divided among the national

government and the state governments Some powers are held exclusively by Fed. Gov’t (examples?) Some powers are held exclusively by states (“police power”) Some powers are concurrent (held by both the Federal

Government and state governments) – taxation, eminent domain, borrow money

10th Amendment – reserved powers of the states

Article VI – Supremacy Clause The Constitution, laws, and regulations enacted

by the national government are superior to those enacted by the states

Keep in mind that the national government is one of enumerated powers (it has only those powers granted to it (either explicitly or by implication) in the Constitution.

Article VII of Constitution Provides that ratification occurs on the action of 9

states (violates rule set forth in Art. of Confed.) States held individual conventions to consider the

new constitution 1787-1788 (9 states ratify as of 6/21/1788) Virginia and NY ratify in summer of 1788 N. Carolina and R.I. ratify in 1789 and 1790,

respectively

Key Amendments to the Constitution Bill of Rights (1791) – originally applied only to the federal

government Amendments 1-8

Amend 9 – unenumerated powers / Amend 10 – reserved power of states 13th Amendment – forbids slavery 14th Amendment – due process clause, vehicle for incorporation of

many provisions of the Bill of Rights Also and equal protection clause, privileges and immunities clause

19th Amendment – women’s suffrage 27th Amendment (1992) – directed at salaries of members of

Congress

Constitutional Interpretation Key Question: How are we to use the

language of the Constitution as a limitation on government power and as a guide for governing?

Constitutional Interpretation Two views :

(1) Interpretivism – Constitutional language has an objective, fixed meaning. Our job is to “discover” that meaning.

Intentions of the framers Possible source: Madison’s notes on the debates held at the

Constitutional Convention in 1787. Problem: In an environment of conflict and compromise, are

we certain that a clear intention adheres to the constitutional language?

Literal meaning of constitutional language Source: the document itself Problem: How do we arrive at the meaning of language?

(2) Non-interpretivism The limitations imposed on government by the

Constitution are not perfectly captured in the document’s language.

The limits of government power must be periodically reconsidered in view of changing circumstances and the evolution of the nation’s political beliefs

Key point – intentions of the framers are largely unknown; constitutional language is indeterminate or ambiguous in meaning