Module 1.2 U.S. Constitutional Framework Prof. Bryan McQuide University of Idaho Summer 2008 Constitutional Trivia! Which of the following Presidents signed the U.S. Constitution? George Washington John Adams Thomas Jefferson James Monroe James Madison Answer? Overview of Lecture Why Constitutions? Articles of Confederation (1777-1789) Why did it fail? Constitutional Convention Key conflicts & compromises Principles of our constitution 1
Why Constitutions? Recall from Module 1.1 that we enter into a social contract with government to protect our life, liberty & property in return for our obedience of the law. Constitutions are a means to enforce this contract and limit the government. All societies need some kind of higher law or supreme law of the land to establish the basic rules of governing and ensure political stability. Without constitutions, opportunistic politicians could debate the length of their terms, refuse to give up their seats, or debate the rules of legislation all the time. Like baseball, we need undisputed rules of the game to follow in politics. Conflict over the basic rules would destroy society! Characteristics of Constitutions They cannot be easily revised (this is critical for democratic and political stability) --a constantly changing constitution is a sign of instability and a lack of legitimacy Justifies the legitimacy of the state s right to govern Sets explicit limits on government (key!!!) Establishes concrete, understood rules for elections and orderly transfers of power Characteristics of Constitutions Can be written (ex: US, Germany) or unwritten (ex: UK, Israel). Unwritten constitutions consist of the laws, traditions, and customs that are so strong as to be considered binding. Establishes the form of government, limitations on the government, governmental institutions, and protections of minority rights in balancing majority vs. minority interests Symbolic: written statement of political ideals (US: to form a more perfect union ) 2
Protection of Rights Human Rights: a relatively new concept, particularly after WWII. Entails freedom from government mistreatment. EX: 1948 UN Universal Declaration on Human Rights (http://www.un.org/overview/rights) Economic Rights: guarantees of adequate standards of living (such as education, minimum standard of living). Newest and most controversial form of constitutional rights. US does not have this type. EX: 1988 Brazil Constitution Q: Is having the right to a job really a right? Protection of Rights Civil Liberties: entails political rights, freedoms, due process rights. Is a limitation on government spells out what the government CANNOT do EX: US First Amendment Civil Rights: ability to participate in politics and society such as voting regardless of race, ethnicity, nationality, gender, etc. EX: US 14 th Amendment, CRA of 1964 Political Choices. Constitutions are an explicitly political choice: constitution writers make choices that include or exclude elements of the population and that prescribe certain outcomes: Separation of powers vs. fusion of powers? Constitutional courts to interpret or have legislatures be the final arbiter? Electoral rules (we will discuss this in detail later on ) Calendar elections vs. calling of elections? 3
Political Choices. Where to concentrate power? Legislature vs. executive? Or balance them out? US: balanced; Russia: concentrates much power in the Presidency and has a weak State Duma (national legislature) What kinds of rights to be protected? Strong central government or weak central government? What kinds of checks and balances to have? Who should be allowed to vote? Articles of Confederation (1777-1789) First US Constitution Placed power in the Continental Congress Strong limits on governmental power (no action could be taken without a unanimous vote by the states) No executive the states were responsible for executing the laws Was a confederal system Articles of Confederation (1777-1789) Confederal system: all power is in the regional governments, central government very weak EX: US 1777-1789, United Nations today Unitary system: all power is in the central government; regional states have no power base of their own EX: France Federal system: power is shared between the central government and regional governments; each have their own bases of power EX: USA, Canada 4
Articles of Confederation (1777-1789) Problems with the Articles: Each state had 1 vote Term limits on legislators State representatives were chosen and paid by state legislatures, not the national gov t Congress could only declare war, make peace, make treaties, and borrow money Congress could NOT regulate interstate commerce, raise revenue (it had to ask the states for money), or regulate foreign commerce Articles of Confederation (1777-1789) Other countries played the states off against each other; the U.S. was weak in its international position Radical interest took control of Penn., R.I. Governments and scared business interests Political conflicts between wealthy and lower class laborers Weak executive power Shays Rebellion (1787)-sparked fears of domestic revolts & unrest. Congress was unable to do anything! Constitutional Convention (1787) Philadelphia, PA. Five months long. Took place during a hot, humid summer tensions boiled over! Took place in secrecy (Imagine if this took place today!) Original purpose was to revise the Articles, not rewrite an entirely new framework of government 5
Major Political Conflicts of the Convention #1. Representation Small vs. large states Virginia Plan: base it on population NJ Plan: each state gets an equal # Solution: Great Compromise solves it by creating a bicameral (2-house) Congress with the House based on population and the Senate based on equal # House of Representatives US Senate 6
Major Political Conflicts of the Convention #2. Strength of the national gov t Confederal vs. unitary system? Weak executive selected by Congress? Strong executive with independent power? Fear of another monarchy Solution: Federalism, limited executive power, Electoral College Major Political Conflicts of the Convention #3. Slavery Pitted southern landowners vs. New England merchants South threatened to walk out over this issue Battle was over representation and taxes, not moral principles Framers knew this issue would eventually blow up South wanted to count slaves for representation purposes North did not want to count them Solution: 3/5ths Compromise, non-importation after 1808 Major Political Conflicts of the Convention fi#4. Ratification fiarticles called for unanimous vote to change it ficonstitution supporters feared not being able to get a unanimous vote fisolution: Agreed to have Const. go into effect once 3/4ths of the states (9) ratified it 7
Ratification: Federalists vs. Anti- Federalists Federalists Property owners, creditors, merchants Believed elites were most fit to govern Believed in a strong national government Favored a large republic (see Federalist 10) Key leaders were Alexander Hamilton, James Madison, George Washington, John Jay Anti-Federalists Small farmers, debtors, shopkeepers Feared elite power Believed govt should be closer to the people Favored strong protections of individual rights Favored retention of most powers by the state governments wanted a weaker national government Key leaders: Patrick Henry, George Mason, George Clinton Major Political Conflicts of the Convention #5. Bill of Rights This battle occurred after the Convention, but threatened to derail the whole thing Anti-Federalists argued this was needed; Federalists argued it was unnecessary Federalists eventually agreed to introduce a Bill of Rights as the first act of the new government in exchange for ratifications. This helped NY, Virginia, and Massachusetts to ratify it Defense of Constitution: Fed #10 See handout Madison s problem: what to do about factions? Argues that having a large republic ( extend the sphere ) and stronger national government would limit the power of majority factions Rejects Anti-Federalists arguments for smaller republics and greater state power 8
Defense of Constitution: Fed #51 See handout James Madison defends the complex checks and balances system Madison s dilemma: how to enable the government to effectively govern without giving it too much power Must enable the government to control the governed and itself Must have lots of checks gov t is run by powerhungry human beings! (Madison had a cynical view of human nature). The idea was to have so many checks and balances that usurpations of power would be extremely difficult if not impossible. Bicameralism House & Senate Separation of Powers Legislative, Executive, and Judicial branches Separated institutions sharing powers EX: legislative power shared by Congress & Pres. EX: Enforcement of laws is done by executive and judicial branches National supremacy clause Judicial review Marbury v. Madison (1803) Principles In the Constitution Expressed ( Enumerated ) Powers Elastic Clause ( Necessary & Proper clause) Reserved Powers Full Faith & Credit Clause Amendment Process (very difficult!!!) Constitutional Amendment Process Two parts: proposal stage and a ratification stage Requires supermajority votes to propose and to ratify amendments Three types of amendments: Public policy changes (EX: Prohibition 18 th amendment) Correct deficiencies (EX: 13 th Amendment) Promote equality (EX: 14 th, 15 th, 19 th, 24 th, 26 th ) 9
Constitutional Amendment Process Proposal Stage Ratification Stage How often used? Pass both House & Senate by 2/3rds vote Pass both House & Senate by 2/3rds vote Pass by majority in 3/4ths of state legislatures (38) pass by majority in 3/4ths of state ratifying conventions (38) Petitions filed by 2/3rds of the states (34) call for a national conventionpass by majority vote in 3/4ths of state legislatures (38) 26 of 27 amendments Used only once to repeal Prohibition in 1933 (21 st Amendment) Never been used Petitions filed by 2/3rds of the states (34) call for a national convention pass by majority in 3/4ths of state ratifying conventions (38) Never been used Principles In the Constitution Supreme Court Judicial independence, insulated from popular opinion Lifetime appointment Staggered elections and different electoral bases: why? Limits on national government power (see handout) Principles In the Constitution Institution Term Electoral Base House 2 years Elected by people based on local districts Senate 6 years -chosen by state legislatures until 1913, now by statewide election President 4 years Electoral College Supreme Court Lifetime Chosen by Pres., confirmed by Senate 10
Principles In the Constitution Fragmentation of government power Makes it difficult to pass things quickly Framers favored policy gridlock Makes it hard for any one branch to dominate or usurp political power Dividing and distributing power is very effective to limit power Checks & Balances EX: impeachment EX: veto power EX: bicameralism EX: judicial review Towards Greater Democracy Over time, we have amended the Constitution & U.S. laws to improve our democracy EX: 13 th, 14 th, 15 th, 17 th, 19 th, 24 th, 26 th amendments EX: CRA of 1964 EX: VRA of 1965 See handout Thurgood Marshall 1987 Speech What did he say about the Constitution? Why did his speech shock people? 11