The American Constitution
Origins and Influences
The Symbol of Higher Law
Almost political scripture Unconstitutional = unholy Catherine Drinker Bowens Miracle At Philadelphia (1986) Yet, written as political compromise
to launch a new nation agricultural society huddled along the coast of a wild new land . . .
Today: Longest Lasting Written Constitution
Almost the same 4300-word document governs a massive urban society and a global superpower in the post-nuclear age
Feudalism: The European Legacy
Priority of community Partness Tradition Authority Hierarchy Organic cooperation Government as burden of aristocratic dignity
Enlightenment Liberalism
Priority of Individualism a-partness Reason Liberty Equality Competition (at times friendly) Government as necessary, but a necessary evil (more-so for some writers than others)
Influence of John Locke (16321704)
Classic Two Treatises on Government God had given the Earth to the Children of Men, . . . To mankind in common Natural human rights (recognition of higher law)inherent in human nature itself Following from this: relative EQUALITY Limited Government
Lockes Influence (contd)
Labor invested, property Accumulation, but not to spoil Invention of Money (as exchange) shifts the spoilage argument to the consumer Some will be industrious and rational; others quarrelsome and contentious Industrious property owners have a stake in maintaining order and are in civil society, not just of itthey can VOTE
Contract Theory
Contract of Society
People give up total freedom to create a civil society
Trust Agreement
Agreement to create government (which has only obligations, no rights) Created by majority of property owners And held accountable to the majority
Public and Private
Public Life (Political Society) Civil Society Individual
Private Life Not Subject to Political Individual Rights Immune from Governmental Regulation Minority Rights
The Political Theory and Practices of the Revolutionary Era
Conflicts over the meaning of democracy and liberty in the new nation Revolution was fought (initially) to preserve an existing way of life. Traditional rights of life, liberty, and property seemed to be threatened by British policies on trade and taxation. The Revolution was inspired by a concern for liberty together with the development of sentiments for popular sovereignty and political equality.
Prelude to the Declaration of Independence
Delegates to the Second Continental Congress did not originally have independence in mind. By the spring of 1776, delegates concluded that separation and independence were inescapable. A special committee was appointed to draft a declaration of independence. The Declaration of Independence was unanimously adopted by the Second Continental Congress on July 4, 1776.
Political (Lockean) Ideas in the Declaration of Independence
Human beings possess rights that cannot be legitimately given away or taken from them. People create government to protect these rights. If government fails to protect peoples rights or itself becomes a threat to them, people can withdraw their consent from that government and create a new one
Omissions in the Declaration of Independence
Slavery Women, Native Americans, or African Americans who were not slaves
The Articles of Confederation
Adopted by Continental Congress on November 15, 1777, but not ratified . . . The First Constitution (March 1, 1781, when all 13 states adopted it)
3 years of the Revolutionary War fought, in effect, without government
A loose confederation of independent states Weak central government
Principal Weaknesses
Powers of national government were only those expressly delegated No power to tax No independent executive (president was merely presiding officer of the congress) No power to regulate commerce No amendments without unanimous agreement of congress and all states Each stateregardless of sizehad one vote
Shayss Rebellion (1786)
Widespread economic problems among farmers at the end of the Revolutionary War Daniel Shays was a Revolutionary War veteran Nonpayment of taxes and debts led to foreclosure proceedings and imprisonment for debt. High interest rates and high state taxes Farmers in western Massachusetts took up arms to prevent courts from meeting Armed farmers led by Captain Daniel Shays forced the illequipped state militia to withdraw. By the spring of 1787, special armed forces recruited from the Boston area defeated the rebels.
Impact
Reinforced the fears about ineffective state governments and of popular democracy out of control.
Growing concern about democratizing and egalitarian tendencies
Leaders issued a call to meet in Philadelphia to correct defects in the Articles of Confederation. To meet in Philadelphia to propose revisions for the Articles of Confederation, but they wrote an entirely new constitution instead.
Why the Founders Were Worried
An Excess of Democracy in the States In the mid-1780s, popular conventions were
established to monitor and control the actions of state legislators. The Pennsylvania state constitution replaced the property qualifications as a requirement to vote with a very small tax.
The Constitutional Convention
By 1787, most of Americas leaders were convinced that the new nation was in great danger of failing. Delegates to the Constitutional Convention
Wealthy men, well-educated Young, but with broad experience in American politics Familiar with the great works of Western philosophy (such as Locke) and political science
Intentions of the Framers
Historian Charles Beard
The framers were engaged in a conspiracy to protect their personal economic interests.
Reality is more complex
But broad economic and social-class motives were likely important.
Consensus Among the Delegates
Agreement that a new constitution must replace the the Articles of Confederation Support for a substantially strengthened national government Concern that a strong national government is potentially tyrannical Belief in a republican form of government based on popular consent Desire to insulate government from public opinion and popular democracy
Disagreement Among the Delegates
Representation of the states in the legislature Status of slavery Selection of the President Overall, Conflict Often Centered Around Disagreements Between Large and Small States
Compromise and Calculated Ambiguity
Starting Up Providing For Development and Growth Ambiguity + Judicial Review =
Adaptability, Flexibility, Longevity, Durability
Examples of Compromise: The Nature of the Union
Fundamental Nature of the New Government Confederal (Articles of Confederation) or National (Unitary System such as France) RESULT: Federalism
Another Example: Representation
Big States v. Small States (New York, Virginia, etc. vs. Delaware, New Jersey) RESULT: Bicameralism
The Problem of Slavery
Contradicted the Declaration of Independence: The Principle of Equality Should Slaves be Included? For Taxation? RESULT: Three-Fifths Compromise, the 20 year
grace period, fugitive slave obligation on states.
The Presidency
A single executive Indirect election by an electoral college The House of Representatives would choose a president if no one received a majority of electoral votes.
Limited Government
Specific powers of the national government (Article I, Section 8) and specifically denies others (Article I, Section 9) The Bill of Rights imposes restraints on the national government by protecting fundamental rights of citizens 10th Amendmentbut expressly is deleted
Property and Free Enterprise
Concern that a system too democratic would threaten private property Constitutional protections for property rights
Article VI, Section1 Article IV, Section 2 5th Amendment of the Bill of Rights
Constitutional provisions aiding the emergence of a national free enterprise economy
Article 1, Sections 8-10
Examples of Calculated Ambiguity
Powers of the President Powers of the Judicial Branch Enumerated Powers of Congress Necessary and Proper Clause (the elastic clause) RESULT: Reducing the need for formal amendments
Democracy and Majority Rule
The Problem of Majority Tyranny The Madisonian Dilemma Majority Rule v. Minority Rights The Federalist Papers
Written to persuade New York to ratify the work of John Jay, Alexander Hamilton, and James Madison
Preventing Majoritarian Tyranny:
LEGAL--e.g.., the Bill of Rights and the idea of a limited government of enumerated powers SOCIOLOGICAL--the extended Republic (Federalist #10) POLITICAL--separation of powers and checks and balances (Federalist #51) PSYCHOLOGICAL--ambition must be made to counteract ambition
Checks on Majority Rule
Checks on majority rule
The people rule only indirectly
Bicameral legislature, with varying terms of office and different constituencies Indirect election of the President and Senate (changed by Amendment XVII) Presidential appointment of judges and confirmation by the Senate
Cumbersome and difficult amendment process
Separation of Powers and Checks and Balances
During the American Revolution, American leaders worried primarily about the misrule of executives and judges. Those who drafted the Constitution were more afraid of the danger of legislative tyranny. The framers turned to the idea of mixed or balanced government, which had been popularized by the French philosopher Montesquieu.
RESULT: Who Governs?
Dispersion and Fragmentation of Power (multiple places where minorities can block the majority) Indirect Majority Input Inefficient Government The Power Elite? The Monied Class?
How Democratic Was the Constitution?
The Right to Vote
Limited Franchise--White Males, Over 21, with Property
The Electoral Connection
Electoral College for President Staggered Terms for Senate and Election by State Legislatures
How Democratic? (contd)
Modifications in the Course of American Development For example
15th Amendment (race) 19th Amendment (sex) 26th Amendment (age) 17th Amendment (direct election of Senate) Custom: the Electoral College
Powers and Limits in the Constitution
Powers of the National Government
Commerce, Taxing, Spending
Limitations
Bill of Rights (e.g.., free speech) Other Amendments (13th, 14th, 15th, e.g..) Federalism, Separation of Powers, Checks & Balances
Judicial Review
Marbury v. Madison (1803)
The Bill of Rights
Ratification Agreement Madison opposed a Bill of Rights
Unnecessary Dangerous
Jefferson Influences Madison Danger Averted by 9th Amendment
The First Amendment: Freedom of Speech and Press
Congress shall make no law . . . abridging the
freedom of speech, or of the press . . . Is this an ABSOLUTE right? (for example, Justice Hugo L. Black) If not, what are the limits? How much expression should be protected?
The Religion Clauses in Collision
One clause demands that the government not recognize religion The other clause demands that the government allow free exercise of religion The two clauses are in tension Most Chaotic Field of Constitutional Law
No Unreasonable Searches and Seizues
Warrantless searches and seizures are presumed to be unconstitutional But, there are Exigent Circumstances Limits to Excused Searches Exclusionary Rulethe Price of Violation Technology and the 4th Amendment
What is unreasonable?
Liberal and Conservative Courts
Compulsory Self-Incrimination
Originally TOTALITY of the FACTS Miranda Warnings: You have the right to remain silent, . . . Court Absolutizes the Inquiry
Facts are Unreliable Facts are Unnecessary
Liberal and Conservative Courts
Cruel and Unusual Punishments
Is the Death Penalty Unconstitutional? 5th Amendment Due Process Clause
No deprivation of life, liberty, or property without due process of law
Evolving Standards
The Fundamental Right of Privacy
Not in the Text of the Constitution 1960s: The Court found Marital Privacy 1970s: Abortion (Roe v. Wade [1973] Whether to Have an Abortion is a Decision Protected by the Privacy Right that is part of Liberty in Due Process Heated Political Issue in 1970s-present
Right of Privacy: Part II
Does Privacy Protect More Choices? The Right of Sexual Intimacy? Can Government Punish Gays? Bowers v. Hardwick (1986)
Court Limits Privacy to Family Matters and Reproductive Rights Court overrules Hardwick in Lawrence v. Texas (2003)
What About the Right to Diewith Dignity?
