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By Loren Miller

Constitution
A constitution is the fundamental law of the land
-- it creates political institutions
-- it assigns or divides powers in government
-- it often provides certain guarantees to people
-- it provides for amending itself
-- it can be written (like the United States
Constitution) or unwritten (like the British)
-- Before the French and American Revolutions, a
constitution was conceived as something that evolved
from a nations history or practice

An ideal constitution should be flexible, concise and


dedicated to fundamental principles.

Constitution
A constitution is made by the people, and in
democracies this means in a convention. That
means that a constitution is influenced by the
governmental experience and the social and
economic backgrounds of those who attend the
convention.
What type of people tend to benefit when a new
constitution is written?

Nation
United States
Netherlands
Argentina
Canada
Australia
Austria
Ireland
Japan
Italy
Germany
India
Great Britain
Israel
New Zealand

Year the Current Constitution Was Written


1789
1814
1853
1867
1901
1920
1937
1947
1948
1949
1950
No Written Constitution
No Written Constitution
No Written Constitution

Constitutionalism in America
The Constitutional Convention of 1787 had many
antecedents:
-- The Magna Carta (1215): English lords,
traditionally required to finance a kings
wars, forced King John to sign the
Magna Carta, a document guaranteeing
their feudal rights and setting the
precedent of a limited government and
monarchy
-- The Mayflower Compact (1620): After the
Pilgrims landed at Plymouth, they formed a colony
based on the Mayflower Compact, thus setting a
precedent of a government established by contract
among the governed

Constitutionalism in America
-- The Colonial Charters (1624-1732): The
colonial charters that authorized
settlement of the colonies in America
were granted by royal action
-- The Declaration of Independence (1776):
Members of the Continental Congress
came to view a formal Declaration of
Independence as necessary to give
legitimacy to their cause and establish
the basis for a new nation
-- The Articles of Confederation (1781-1789):
The national government was thought of
as an alliance of independent states, not
as a
government of the people.

Role of America in the British Empire


American colonists were theorizing about a federal
government:
-- was the British Empire federal or unitary?
-- what rights do the people in the Empire have?
-- when a conflict arises, who is supreme?
Radicals a distinct minority; the British played right
into their hands by raising taxes and by overreacting
Majority we need England to protect us, but in local
matters we have control

First Continental Congress


-- met in Philadelphia in 1774
-- brought together irregular delegates from every
colony except Georgia
-- discuss the emergency over Great Britain and its
repressive measures
-- seven weeks of discussion
-- adopted a declaration of rights
-- called for a second meeting to be held the
following year

Carpenter Hall

Benjamin Franklin

Second Continental Congress


-- met in Philadelphia in 1775
-- presided over by John Hancock and included
Benjamin Franklin, John Adams, Samuel
Adams,
and Richard Henry Lee (all radicals)
-- forced to step into the breach because the war had
begun (the Battles of Lexington and Concord)
-- conducted the functions of government, moving
from place to place, until 1781
-- really just conducted the war, not the functions of
government

Declaration of Independence
A philosophical justification for independence
-- primarily written by Thomas Jefferson and
heavily influenced by the writings of
John Locke
-- a list of grievances against the King
-- he has . . . . Declaration of Independence - Text Transcript
-- self-evident truths
-- all men are created equal . . . .

1632-1704

Articles of Confederation
In the Second Continental Congress, William Henry Lee proposed
the creation of a new government.
A committee, chaired by John Dickenson, drafted a plan which
was approved in 1777.
This plan became the Articles of Confederation:
-- state sovereignty
-- concentration of powers in a unicameral
legislature which met annually; each state had
one vote and 9 of 13 were needed to adopt laws
-- amendments required unanimous consent
-- national government could adopt resolutions and
issue commands but had no means to enforce
them

Articles of Confederation
Even before the Articles took effect, several leading
statesmen were not pleased
-- Washington, Hamilton, Jay and Madison
believed that the powers conferred on
the national government were inadequate
Nationalists revolutionary war officers, merchants,
holders of certificates of debt
Localists freeland farmers who felt that the central
government was too far away from the
immediate problems of domestic life

Weaknesses of the Articles


No power to tax (relied on the states to forward taxes)
No power to regulate interstate commerce
Each state had their own currency
Could not protect western settlers from Indian attacks
There was civil disorder as debtors openly revolted
against tax collectors and sheriffs attempting to
repossess farms on behalf of creditors who held unpaid
mortgages (Shays Rebellion)

The Road to the Constitutional Convention

Annapolis Convention (1786)


-- called by Virginia to try to lower interstate
tariff barriers
-- only five states sent delegates
-- most of the delegates were nationalists and
they called for a new convention to
meet the following year
-- the convention was to meet in Philadelphia
to propose the revision of the Articles
of Confederation

The Constitutional Convention (1787)


Who Was There?
-- average age was 42
-- s had served in the Confederation
Congress
-- most had played a part in the Revolutionary
War
-- lawyers predominated
-- most held important public positions
-- about half were college graduates

The Constitutional Convention (1787)


Who Wasnt There?
--Patrick Henry (he smelt a rat)
-- John Hancock
-- Richard Henry Lee
-- Samuel Adams
-- Thomas Paine
-- Thomas Jefferson
-- John Adams

Patrick Henry

John Hancock
Thomas Paine

The Constitutional Convention (1787)


Convention sessions were held in the old brick State House
in Philadelphia in the room directly above that in which the
Declaration of Independence was signed.
Seventy-four delegates were appointed but only fifty-five
ever attended. Most of the meetings were sparsely
attended.
The only state not represented was Rhode Island
Washington was unanimously chosen to preside
Each state would receive one vote
Proceedings were to be kept secret; a secretary was
appointed but Madisons notes are the best record

The Constitutional Convention (1787)


Consensus:
-- all were supporters of a republican form of
government
-- all wanted a balanced (but limited) government
-- most wanted property qualifications in order to
vote
-- most wanted a bicameral legislature
-- almost all wanted increased power to the national
government
-- state constitutions and the Articles of
Confederation focused too much on limiting
government power, so this experience led to the
creation of a strong national government

The Constitutional Convention (1787)


Compromises:
-- Connecticut Compromise
-- Virginia Plan
-- New Jersey Plan

Total Population:
1.8 million

Total Population:
1.6 million

-- Commerce and Slave Trade Compromise


-- Congress could tax imports but not exports
-- Congress could not pass laws to end the
slave trade until 1808
-- Three-fifths Compromise
-- for the purpose of taxation and representation,
slaves would count as 3/5s of a person

Population in 1790
% Enslaved
Connecticut

237,635

1.1

Delaware

59,096

15.0

Georgia

82,548

34.5

Maryland

319,728

32.2

Massachusetts

378,556

0.0

New Hampshire

141,899

0.1

New Jersey

184,139

6.2

New York

340,241

6.2

North Carolina

395,005

25.5

Pennsylvania

433,611

0.9

Rhode Island

69,112

1.4

South Carolina

249,073

43.0

Virginia

747,550

39.1

The Constitutional Convention (1787)


The Limited Role of Religion:
-- Most of the delegates were Christians (except for a few
Deists)
-- The review of notes on the debate at the convention
reveals few references to religion or to God
-- The few references that were made do not
suggest that the Founders attempted to base the
Constitution on an explicitly Judeo-Christian belief
system
-- The Founders viewed religion as belonging to
the private rather than the public sphere
-- Their primary concern was to protect the individuals
religious beliefs from the government, not to base a
government on a particular set of religious principles

Franklins Closing Plea


I confess that there are several parts of this Constitution which
I do not at present approve, but I am not sure that I shall never
approve them. For having lived long, I have experienced many
instances of being obliged by better information or fuller
consideration to change opinions even on important subjects,
which I once thought right, but found to be otherwise . . . . the
older I grow, the more apt I am to doubt my own judgment, and
to pay more respect to the judgment of others. In these
sentiments, I agree to this Constitution with all its faults, if
there are such; because I think a general government
necessary for us.
Compare the actual signing of the document with the pictorial
description . . . .
13 Walked out and didnt sign
3 Abstained from signing

Articles of Confederation v. Constitution


Element
Selection of Members
of Congress
Voting in Congress

Articles of Confederation
Appointed by state
legislatures

Constitution
Representatives elected by the
people; Senators appointed
by state legislatures

One vote per state

One vote per representative;


One vote per senator

Source of Congressional
Pay

States

National Government

Executive

None

President

Judiciary
Body Authorized to settle
disputes between states
Power to coin money
Taxes

No federal court system

Supreme Court + Congress

Congress

Supreme Court

National government and states

National Government only

Collected by the states;


apportioned by Congress

Collected and apportioned


by Congress

The Struggle for Ratification


Article VII the Constitution will take effect when
ratified by nine states.
Because the Constitution placed many prohibitions
on the powers of states, the Founders believed that
special constitutional ratifying conventions would be
more likely to approve the document than would state
legislatures.
The Federalists called for ratifying conventions to be
held as quickly as possible so that opposition could
not get organized.

The Struggle for Ratification


The Federalist Papers were 85 essays written by
Alexander Hamilton, James Madison and John Jay
(Publius) and published in New York newspapers.
They are considered to be classics in political theory.
The Anti-Federalist response (Montesuma or
Philadelphiensis) claimed that the writers of the
Constitution were aristocrats and that the Constitution
would lead to aristocratic tyranny and an
overburdening central government. They also
demanded a bill of rights.

The Struggle for Ratification


Scarcely a feature of the plan escaped attack:
-- Patrick Henry and John Adams took
offense at any proposal looking
toward a centralization of authority
-- Patrick Henry wrote I look upon that
paper as the most fatal plan that could
possibly be conceived to enslave a free
people
-- Northerners v. Southerners
-- agricultural interests v. industrial interests
-- the absence of a Bill of Rights to protect
individual liberty

Articles of Confederation

Constitution

British Rule

The Struggle for Ratification


The promise of a Bill of Rights appeased Sam Adams and
John Hancock.
Ratification in New Hampshire brought the total to nine.
However, New York, Virginia, North Carolina and Rhode
Island had not ratified.
The role of The Federalist Papers was instrumental in
getting New York to ratify (30-27) and Washington was
sworn in as president of eleven states.
Rhode Island did not ratify until a Bill of Rights was
proposed and they were threatened consideration as a
foreign country.

Final Vote for Ratification


STATE

DATE OF RATIFICATION

VOTE IN CONVENTION

Delaware

December 7, 1787

Unanimous (30-0)

Pennsylvania

December 12, 1787

46-23

New Jersey

December 18, 1787

Unanimous (38-0)

Georgia

January 2, 1788

Unanimous (26-0)

Connecticut

January 9, 1788

128-40

Massachusetts

February 7, 1788

187-168

Maryland

April 28, 1788

63-11

South Carolina

May 23, 1788

149-73

New Hampshire

June 21, 1788

57-47 (2 meetings)

Virginia

June 25, 1788

89-79

New York

July 25, 1788

30-27

North Carolina

July 21, 1789

194-77

Rhode Island

May 29, 1790

34-32

Tough Fight

Originally Refused

Amending the Constitution


Article V

The Constitution: Difficult to Amend

Since 1789, more than 11,000 amendments have been


formally offered in Congress. Of these, Congress
officially proposed only 33, and 27 of those were
eventually ratified by the states.
Two of these, Prohibition and its repeal, cancel each
other out, so that for all practical purposes, only 25
amendments have been added to the Constitution since
1791.

The Constitution: Difficult to Amend


Most failures were simply attempts to use the
Constitution as an alternative to legislation for dealing
with a specific public problem.
-- Child Labor Amendment (1924)
-- Anti-Miscegenation Amendment (1912)
-- Balanced Budget Amendment (numerous times)
-- Every Vote Counts Amendment (2004)
-- Abolishes the Electoral College

The Constitution: Change via Interpretation


Executive Interpretation: derived from the concept of
inherent powers
-- executive privilege: the right of the president to withhold
information on matters of national sensitivity or personal privacy

Legislative Interpretation: every time Congress enacts


legislation, it must interpret the Constitution
-- some legislation is so far reaching that they fundamentally alter
the responsibilities and functions of government (e.g., Social
Security
Act)

Judicial Interpretation: the power of judicial review


-- interpretation of equal protection and due process of law

Basic Principle: Presidential v. Parliamentary


Basic Difference: relation between the executive and the
legislative branches
Presidential:
-- independently elected chief executive
-- a gulf between the executive and legislative branches
-- executive serves a fixed term
-- executive chooses the Cabinet with little legislative input
-- Problem: if Congress is dominated by one party and the president
is of the other party
Parliamentary:
-- executive comes from the legislature
-- conflict between the legislative and executive branches is
not possible
-- Cabinet (Ministry) is drawn from the legislature
-- legislatures function often is simply to accept and make
legitimate the action of the Cabinet
-- Problem: when no party is able to capture a clear majority

Basic Principle: Separation of Powers


Montesquieu Spirit of the Laws; check power with
power by dividing authority
Separation of power has required the cooperation of all
three branches of government to operate (Madisonian
Model)

Checks and Balances

Checks and Balances

Basic Principle: Single Member Constituency


We have only one winner per election
-- each state has two senators but they each run in
separate elections
This is responsible for the two-party system in the United
States.