Lecture Outline: Chapter 2

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1 Lecture Outline: Chapter 2 Constitutional Foundations I. The U.S. Constitution has been a controversial document from the time it was written. A. There was, of course, very strong opposition to the ratification of the Constitution when it emerged out of the Philadelphia Convention in B. Even among its supporters, the Constitution has generated debate. One such controversy focused on constitutional change. 1. Thomas Jefferson favored frequent and radical changes in the constitutional system every 20 years, if necessary. 2. His friend and political ally, James Madison (often called the Father of the Constitution ), was more concerned with instability than change. He favored cultivating popular attachment to the Constitution to promote long-term stability. 3. Americans have accepted both sides of the Jefferson-Madison debate at different times in U.S. history. For most of the nineteenth century, Madison s concerns were stressed, and this was reflected in the popular treatment of the Constitution as timeless and perfect. For the past century, in contrast, the emphasis has been on viewing the Constitution as a living document. Each perspective has been marked by the dominance of a particular myth reflecting the respective positions. II. The Constitution owes much of its durability to the fact that it was not created in a vacuum. A. The failure of the Articles of Confederation instigated the writing of the Constitution in B. The convention delegates were a group of diverse, experienced, and politically savvy personalities. C. The Constitution also reflects a variety of important traditions: 1. The framers relied heavily on the British constitutional tradition, including its charter (such as the Magna Carta), its common law (judge-made law), and its major statutes (most notably the British Bill of Rights). 2. Many traditions from colonial times influenced the writing of the Constitution, including the principle of self-government. 3. In addition to Judeo-Christian religious traditions, the framers were influenced by European philosophers of the Enlightenment, including Thomas Hobbes, John Locke, Charles de Montesquieu, and Jean-Jacques Rousseau. D. The political history of the colonies was also a major factor: 1. Until the 1760s, the American colonies operated without much oversight by the British, which gave them experience with self-governance. a. In the 1760s, the British began to interfere in the political life of the colonists, thus planting the seeds for revolution. b. The Stamp Act of 1765, the first tax directly levied against the colonists, led to the cry of taxation without representation. c. In September 1774, the First Continental Congress met to protest British actions. By the Second Continental Congress, in May 1775, colonists and British troops had exchanged gunfire at Concord and Lexington. d. On July 2, 1776, the Declaration of Independence was adopted. It articulated two basic principles: (1) The purpose of government is to secure the inalienable rights of its citizens.

2 III. (2) The basis for government authority is the consent of the governed. Within the political context of the times, the framers of the Constitution approached their task with five important objectives: A. They needed to establish a national government whose legitimacy and authority would be acceptable to the people. The source of government authority, as stated in the preamble, would rest with the people. B. Their efforts to structure government authority had to address two challenges. The first was how to divide authority between the national and state governments. To accomplish this, they created modern-day federalism. 1. In conceptual terms, the federal system is distinctive in the way it divides government authority between a national government and state governments. Under the theory of federalism, some powers are exercised by the national government, others by state governments, and still other powers are shared between the two levels of government. 2. This contrasts with the unitary system found in many countries, which places all formal authority in the central government. a. These systems are not necessarily undemocratic, nor are they necessarily without local governments. b. In Great Britain, for example, democracy thrives, as do local government authorities, which are created by Parliament to carry out many public policies. 3. It also contrasts with a confederal system, which places government authority in the hands of state governments and permits them to enter into an agreement that establishes a central government that can carry out nationwide policies and programs. a. This system can also be quite democratic and durable, as is evident in the confederal system in the government of Switzerland, a system that is centuries old. b. This was also the system under the Articles of Confederation, and it was the model upon which the Confederate States of America attempted to operate during its short existence in the Civil War. 4. Borrowing from both models, the framers developed the general outlines of the federal system. They left many details undefined, however. As a result, the structure of authority between nation and states has been constantly changing as we discuss in Chapter 3. C. A second task was to design a structure for the national government that would avoid the problems experienced under the Articles of Confederation. The solution is reflected in the first three articles of the Constitution that establish the basic institutional structures of American government. 1. The Great Compromise became the basis for the structure of government. The Great Compromise was a reaction to two other plans. a. The Virginia Plan favored the large states in the representative process by calling for a two-house (bicameral) Congress based on each state s population. Separate executive and judicial branches were also advocated under this plan. b. The New Jersey Plan favored the smaller states by advocating changes in the Articles of Confederation that would maintain equal representation of the states in a strengthened unicameral legislature while creating executive and judicial branches. 2. The Great Compromise resolved the problem. A bicameral Congress was established with one house the Senate favoring the smaller states through

3 equal representation and the other house the House of Representatives favoring the larger states through representation based on population. a. The compromise created an executive branch headed by a president and a vice president. b. The framers also created a Supreme Court and provisions for the establishment of inferior Courts as called for by Congress. 3. The Great Compromise was the first of several major political compromises reached at the 1787 convention. a. Other bargains helped settle (at least temporarily) issues such as slavery, taxation, and states rights (see Table 2.1). In the process, the institutions of federalism (see Chapter 3) were established. b. A major legacy of these compromises is that they created ambiguities and institutional flaws that later generations would have to contend with. A primary example is the history of the electoral college. D. The founders wanted to define the formal powers of the branches of government. They gave Congress the right to make laws and the president the power to oversee their execution. The powers of the courts were more ambiguous and were clarified later in several important court decisions. These decisions established the principle of judicial review, the power to hear and judge disputes over the law. 1. Article I, Section 8, of the Constitution lists the delegated powers explicitly given to Congress, including the power to tax and regulate commerce between the states. 2. The same section of Article I provides Congress with the right to make all laws necessary and proper to carry out its constitutional responsibilities. This necessary and proper clause established implied powers for Congress that go beyond those listed in the Constitution. 3. The Tenth Amendment states that all powers not expressly denied to the states or given to the national government belong to the states. Known as reserved powers, historically they have included providing for public education and controlling intrastate trade. E. The Constitution also placed formal limits on the powers of national and state governments. 1. The body of the Constitution contains a number of limits, such as prohibitions against ex post facto law and bills of attainder and severe restrictions on the government s ability to suspend the writ of habeas corpus. 2. The most famous limitations were established later, however, in the first 10 amendments, called the Bill of Rights. They guaranteed the fundamental liberties, including freedom of speech, press, assembly, and religion. 3. There were also provisions placing limits on the actions of states and establishing the supremacy of national laws in case of conflict between the two levels of government. F. The framers final goal was to provide procedures that could be used to amend the Constitution. 1. There are a variety of ways to bring about constitutional change. The framers engaged in the most radical of those means they literally replaced one constitutional system with another. 2. But in the Constitution itself they created elaborate processes for formally amending the Constitution. a. There are two ways to propose and then ratify amendments:

4 IV. (1) Amendments can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of two-thirds of the states. (2) An amendment may be ratified by either three-fourths of the state legislatures or by ratifying conventions in three-fourths of the states. b. In addition to the first 10 amendments (the Bill of Rights), there are 17 additional amendments to the Constitution. The amendments cover voting rights, rules for electing officials, changes in the constitutional powers of government, and citizens rights. (See the appendix of the text for a review of the 27 constitutional amendments.) 3. Over time, two other means for changing the Constitution have emerged. a. When faced with issues or ambiguities in the Constitution, each of the branches has had to rely on interpretation, and in the process they have given meaning and changed our constitutional system. The Supreme Court has been the most active interpreter, but all three branches have been involved. b. Similarly, there are gaps in the constitutional framework that needed to be filled with rules, practices, and institutions. Thus, we have change being brought about through acts of construction by each of the branches. The Constitution was built on five principles that have been central to the stability and endurance of the American constitutional system. A. The rule of law, although never mentioned directly in the Constitution, is an important legacy of this document. The rulers, like those ruled, are answerable to the law. The framers established this principle by limiting the power of government in many of the Constitution s articles and amendments. B. By advocating the principle of republicanism, the framers were calling for a government in which decisions are made by elected or appointed officials ultimately answerable to the people: the people had a voice, but that voice was filtered through their representatives. C. In the separation of power principle, the framers tried to minimize the possibility of one faction gaining control over the government by establishing legislative, executive, and judicial branches of government. D. The principle of checks and balances makes it possible for the executive and legislative branches to share some responsibility and gives each branch some control over the others activities. The power of the judicial branch to review the actions of the other two branches was established later. E. In the American constitutional system, the principle of national supremacy makes the Constitution the supreme law of the land, providing an authority for settling fundamental disagreements between different levels of government. V. In the discussion of the myth of the living Constitution, the book stated that the constitutional system has succeeded in part because Americans have adopted a view that facilitated constitutional adaptation and change while remaining faithful to some core principles. A. Although it is a relatively well-crafted document, it is constructed out of compromises. Interpretations and constructions influenced by laws, court decisions, political attitudes, and traditions have reshaped the Constitution over the past 200 years, making it a living, not a stagnant, document. B. Not everyone has been pleased by the results. Some have argued that the myth of a living Constitution has compromised some of the basic principles set forth by the framers; others have contended that the basic framework has not been flexible enough in keeping up with the demands for greater democracy in today s world.

Constitutional Foundations

CHAPTER 2 Constitutional Foundations CHAPTER OUTLINE I. The Setting for Constitutional Change II. The Framers III. The Roots of the Constitution A. The British Constitutional Heritage B. The Colonial Heritage