10/12/2012
Founding: Chapter 2
1. What events led to the Declaration of Independence and
the Articles of Confederation?
2. How did the Constitution attempt to improve American
Governance?
3. What are the major institutions and rules established by
the Constitution?
4. Why was the Constitution controversial at the time of
Founding?
5. How was the Constitution Changed over the past
20yrsQuestions?
Framing the Constitution
John Roche
Charles A. Beard
 Wrote “The Founding Fathers: A Reform
 Wrote “An Economic Interpretation of the
 John Roche’s article on the framing of the

 The framing of the Const. was essentially a

Caucus in Action.”
Const. was an attack on Charles Beard.


democratic process involving the
reconciliation on a variety of state, political,
and economic interests.
“The Philadelphia Convention was not a
College of Cardinals or a council of Platonic
guardians working in a manipulative, predemocratic framework. It was a nationalist
reform caucus that held to operate with
great delicacy and skill in a political cosmos
full of enemies to achieve one definitive goal
popular approbation.”
The framers, collectively, were an elite, but
were a political elite dedicated for the most
part to establishing an effective and at the
same time controlled national government
that would be able to overcome the
weaknesses of the Articles of Confederation.




Constitution”
Const. was work of economic elite seeking
to preserve its property.
Elite=landholders, creditors, merchants,
public bondholders, and wealthy lawyers.
Primary concern of the elite was to limit the
power of popular majority and thus protect
their own property interests.
Antimajoritatian attributes in the const.
protect incursions by the majority.
Specific clause in the Const. protect
property. E.g., clause prohibiting states
from impairing contracts, coining money, or
emitting bills of credit, and Article VI
provided that the new govt. was to
guarantee all debts that has been incurred
by the national govt. under the AOC.
Beard suggests a cohesive and even
conspiratorial economic elite.

•
Constitutional Democracy
• American constitutional tradition reflects the beliefs of John
Locke
• John Locke wrote that government must be derived from the
logic of man's condition in the state of nature
• In the state of nature all men are created equal with natural
rights to life, liberty, and property
• In a state of nature no institutions existed to protect natural
rights
• In a state of nature government is formed to protect rights,
resolve disputes among people, repel foreign invasions, and
carry out other tasks in the public interest
• By definition government is defined as a social contract that
could always be abrogated if the government did not govern
with the consent of the people
1
10/12/2012
The First Founding: Interests and
Conflicts
• The American Revolution and the American
•
1.
2.
3.
4.
5.
•
Constitution were the results of a struggle among
economic interests and political forces in the
colonies.
The 5 sectors with important political interest
struggles were:
The New England Merchants
The Southern Planters
The Royalists
Small farmers
Shopkeepers, artisans, and laborers
British taxes affected all these groups and set the
Revolution in motion.
First Founding, Cont…
British Taxes and Colonial Interests
• In the 1760s, British financial and debt problems led
•
•
•
the British govt. to impose new taxes on colonies,
such as the Stamp Act, the Sugar Act, and other tariffs
on commerce
These taxes caused social unrest among the colonists.
Merchants and planters who generally supported the
British rule united with shopkeepers and small farmers
to oppose taxes
Once repealed the merchants and planters would have
returned to the status quo ante, but shopkeepers and
farmers pushed for radical reform and ultimately, a
break from British rule
First Founding, Cont…
Political Strife and the Radicalizing of the Colonists
• Merchants and planters again partnered with
more radical elements to protest the Tea Act of
1773
• The Teat Act granted the East India company
monopoly to export tea from Britain
• This movement ended in the Boston Tea Party,
which prompted a series of retaliatory actions
by the British
• Cycles of provocation and retaliations resulted
in the First Continental Congress
2
10/12/2012
First Founding, Cont…
The Declaration of Independence
• In 1776, the Declaration of Independence,
written by Thomas Jefferson was adopted by
the Second Continental congress
• It asserted that “unalienable rights”—including
life, liberty, and the pursuit of happiness—could
not be denied by government
• The declaration attempted to identify and
articulate principles that united the diverse
interests of the colonials and that might form
the basis for national unity
First Founding, Cont…
The Articles of Confederation
• 1n 1777, having declared independence, the CC
•
•
•
•
adopted the Articles of Confederation and Perpetual
Union
The Articles of Confederation was the first written
constitution and basis for the U.S. national govt. until
1789
The model of government was confederation (states
retained authority except for the powers expressly
delegated to the national govt.)
Weak Unicameral Congress
Execution of laws was left to the individual states
The Second Founding: From
Compromise to Constitution
• Congressional powers under the Articles of
•
•
•
•
Confederation were insufficient to maintain the unity
of the new nation
International Standing and Balance of Power
Under the AOC, Congress was unable to enforce
treaties unless the states agree to them
Made the government illegitimate to other nations and
vulnerable to threats from them
States competed with one another for economic
advantage, giving other nation leverage to take
advantage of the states
Domestically, radical elements mobilized threatening
people’s security and property rights
3
10/12/2012
Second Founding, Cont..
The Annapolis Convention
• Constant weakness and domestic turmoil led
Americans to revise the confederated govt.
• In the fall of 1786, the Annapolis Convention
brought together delegates from several states
and resolved that commissioners be sent to
Philadelphia to devise a constitutional revision
that would meet the needs of the union
• Commissioners from 5 states (NY, NJ, PA, DE,
& VA) called for a general convention at
Philadelphia in May 1787.
Key Features of the AOF
• A unicameral legislature with only one house of the Congress in
command
• No provision for a full fledged judicial system, thus no branches
of judiciary in various states
• No executive branch of the government, (and hence no
president).
• One vote per state irrespective of the size of the state
• A majority of 2/3 for passing any legislation
• A unanimous vote for amendment of the Articles of
Confederation
• No provision for national government interference in commerce
and trade
• Provisions for levying taxes in hands of the state government,
and not the government at the center
Second Founding, Cont…
The Constitutionals Convention
• The delegates convened to revise the AOC in
Philadelphia in May 1787
• Delegates wanted to address the flaws of the
AOF
• Abandon the plans of revising, and attempt to
create a new, legitimate govt.
• The textbook refers to this decision as the start
of “second founding.”
4
10/12/2012
Second Founding, Cont…
A Marriage of Interests and Principle
• The framers’ economic interests were reinforced by their
philosophical and ethical principles
• They sought to create a constitution that:
 promote commerce and protect property
 Prevent excessive democracy
 Bicameralism
 Checks and balances
 Electoral college
 has popular support
 Popular elections
 Prevent govt from abusing its power
 Federalism
 Separation of powers
Second Founding, Cont…
The Great Compromise
• During the CC, a division between the large
and small states threatened to destroy the
nation
• Edmund Randolph of Virginia introduced the
Virginia plan—calling for representation in the
national legislature on the basis of each state’s
population
• Smaller states vehemently opposed the Virginia
plan and introduced an alternative—New Jersey
plan
Second Founding , Cont..
• New Jersey plan—called for equal state
representation in the national legislature
regardless of population
• The debate between the two sides ended in the
Connecticut compromise, also known as the
Great Compromise
• Congress would comprise two houses organized
as follows: (1) one branch, the House of
Representatives would be apportioned
according to the population of each state, and
(2) the Senate, each state would have an equal
vote regardless of size.
5
10/12/2012
Second Founding, Cont…
The question of Slavery: The Three-fifth
Compromise
• Slavery was a very controversial issue
• Slavery made it clear that the division among states
was not about size but also geography
• The conflict was between the North (non-slave-
holding states) and the South (slave-holding state)
• The question was whether to count salves as part of
the population for representation purposes
• The 2 sides reached 3/5 Compromise, by which
every slave would be counted as 3/5 of a person
3/5 Compromise
• Regulation of Slavery
Southern states were afraid that Northern states
would ban importation of slaves and possibly even
outlaw slavery
As a compromise, importation of slavery remained in
effect for at least 20 years after the institution of the
new constitution
The three-fifths compromise remained in effect until
the end of the Civil War
After the civil war, the 13th Amendment was passed
and made all former slaves citizens
Constitution Principles
1. Bicameralism—the division of congress into
two houses, or chambers
2. Checks and balances—the mechanism through
which each branch of government is able to
participate in and influence the activities of the
other branches
3. Electoral College—selection of the president by
electors (rather than directly by voters) from
each state who meet after the popular election
to cast ballots for the president and VP.
6
10/12/2012
The Constitution
4. Bill of Rights—the first ten amendments to the
U.S constitution, ratified in 1791
The Bill of Rights ensure certain rights and
liberties to the people
5. Separation of Powers—the division of
governmental power among several institution
that must cooperate in decision making
6. Federalism—a governmental system in which
power is divided by a constitution between
central and regional govt
The Legislative Branch
• Article 1 provided for a Congress made up of 2 houses
• The House of Representatives are directly elected by
the people for 2yr-terms
• The Senate is appointed by state legislatures for 6yr•
•
terms—staggered so that only 1/3 of the Senate
changes in any given election
Express congressional powers include collecting taxes,
borrowing money, regulating commerce, declaring
war, and maintaining an army and navy
Article 1 also contains the “necessary and proper”
clause, which acts as a vehicle to expand legislative
power beyond those expressed in the constitution
The Executive Branch
• Article II establishes a presidency.
• Framers wanted an energetic executive capable of
timely action to deal with public problems
• They also wanted a moderately independent executive
insulated from direct voter election.
• The president’s term is limited to two four year terms.
• The president was given powers to:
 recognize other countries,
 negotiate treaties,
 grant reprieves and pardons (http://www.justice.gov/pardon/statistics.htm)
 convene Congress in special sessions, and
 veto congressional enactments.
7
10/12/2012
The Judicial Branch
• Article III creates the judicial branch.
• Under Article III, Supreme Court justices are
appointed to life terms by the president with the
approval of the senate
• The SC’s powers include:
resolving conflicts between federal and state laws
determining whether the powers belong to the
national government or the states, and
settling controversies between citizens of different
states
• Constitution does not mention of Judicial Review—
the power of the courts to declare actions of the
legislature and executive branches unconstitutional
National Unity and Peace
• Article IV establishes reciprocity among states
• Each state must give “full faith and credit” to official
acts of other states
• Each state must guarantee the citizens of any state
the “privileges and immunities” of every state
• Article VI institutes national supremacy with the
supremacy clause
• Supremacy clause states that laws passed by the
national govt and all treaties are the supreme law of
the land and superior to all laws adopted by any state
or subdivision. E,g. DOMA--Section 2: “No State …shall be required to
give effect to any public act, record, or judicial proceeding of any other State…respecting a
relationship between persons of the same sex that is treated as a marriage under the laws of
such other State…or a right or claim arising from such relationship.”
Amending the Constitution
• Amending the constitution is not easy.
• Since its promulgation only 27 amendments
have been passed
• Proposal must be put forth by either 2/3 of
both chambers of Congress or a convention
called by 2/3 of the legislature.
• Amendments must be ratified by either the
legislature or the state convention of 3/4 of the
states.
8
10/12/2012
Constitutional Limits on the National
Government’s Power
• The framers wanted a powerful govt with safeguards
against misuse of that power
• So, they included 3 limitations in the constitution.
1. Separation of powers
2. Federalism, and
3. Bill of Rights
Separation of Powers
• Power must be used to balance power
• The entire structure of national govt is built on 3
separate branches: Legislature, executive and
judiciary.
Federalism
• The delegates devised a system of two
sovereign power—the states and the nation
• Sovereign system was to limit the power of the
states and national government
Bill of Rights
• The first 10 amendments to the constitution.
• Adopted shortly after ratification of the
constitution
• Limit national power and protect citizens
The Fight for Ratification
• Ratification was the first hurdle to the
constitution
• Federalists and Anti-federalist
• Federalists favored a strong national govt
• Federalist supported and proposed the
American Constitution at the 1787 convention
• Anti-federalists favored strong state govt and a
weak national govt
• Anti-federalists opposed the proposed American
Constitution at the 1787 convention
9
10/12/2012
Federalists vs. Anti-federalists
• Used essays, speeches, pamphlets and letters to
support and oppose the constitution
• Federalist papers are the best constitutional support
• Both sides had difference of opinions on certain issues
1. Representation
• Anti-federalists asserted that representatives must be
“a true picture of the people.”
• Anti-federalists favored more direct democracy, which
would not be possible in a large nation
• Federalists—representatives shouldn’t be exactly like
those they represent
• Representative democracy=better representatives
The Fight for Ratification, Cont…
2. Tyranny of the Majority
• Threat of tyranny—oppressive rule and unjust govt
that employs cruel and unjust power and authority
• Anti-federalists feared the danger of the few to
oppress the many
• Anti-federalists feared the concentration of power in
•
the hands of a small governing elite (oligarchy/
aristocracy)
Federalists argued that the danger was not in
aristocracy, but in tyranny by the majority driven by
common impulse of passion, or of interest adverse to
the rights of other citizens.)
•
The Fight for Ratification, Cont…
3.
Governmental Power
• Both sides agreed on limited govt. (a govt. whose powers are
defined and limited to a constitution)
• They deferred on how to place limits in govt. action
• Anti- federalists sought to enumerate the national powers in
relation to the states and the people
• Anti-federalists attached the supremacy and elastic clause
because it granted dangerous amount of power to the national
govt
• Federalists favored a national govt. with broad powers capable
to protecting and providing for the welfare of the people and
states
• Federalist were aware of power abuse, but they felt the internal
checks and balance deter the abuse.
10
10/12/2012
Federalists vs. Antifederalists
Federalist
Antifederalists
Who were they ?
Property owners,
creditors, merchants
Small farmers,
frontiersmen, debtors,
shopkeepers
What did they believe
Believed that elites were
best fit to govern; feared
“excessive democracy”
Believed that government
should be closer to the
people; feared
concentration of power in
the hands of the elites
What system of
government did they
favor?
Favored strong national
government; believed in
“filtration” so that only
elites would obtain
governmental power
Favored retention of
power by state
governments and
protection of individual
rights
Who were their leaders?
Alexander Hamilton,
James Madison, George
Washington
Patrick henry, George
Mason, Elbridge Gerry,
George Clinton
Ackerman Erin and Ginsberg Benjamin, Guide to the United States Constitution, 2nd ed., New York: Norton,2011.
Reflection on the Founding
• It was largely the federalist point of view that
triumphed
• Anti-federalists criticism forced the adoption of
a Bill of Rights to limit national govt. power
• The arrangement has been proved effective for
over 200yrs
• The political principle enshrined in the
constitution has benefitted groups and interests
unforeseen by the framers (especially minority
groups)
The Citizen’s Role and the Changing
Constitution
• The constitution has endured for over 200yrs, but not
without change
Amendments: Many are Proposed, Few are Passed
• 4 ways to amend the constitution (Fig. 2.3)
• 2 are commonly used as follows:
Passage in House and Senate, each by 2/3 vote
Ratification by ¾ of the states’ legislatures
OR
Passage in the House and Senate, each by 2/3 vote
Ratification by ¾ of the states’ conventions (used only
once to repeal Prohibition)
11
10/12/2012
Interpreting the Constitution
• The Const. is only a framework, it is not a blue print.
•
•
E.g., the 8th Amend prohibits the infliction of “cruel
and unusual punishment” but gives no examples of
permissible or impermissible punishments; the 14 th
Amend proscribes states abridgement of the
”privileges or immunities of the citizens of the United
States,” but contains no catalog of privileges or
immunities.
Even the framers interpreted the Const in different
ways. McCulloch v. Maryland (1819)
The debate of whether the Const. should be read
“strictly” or “loosely” has changed into another debate
over the importance of ”original intent”
Interpreting the Constitution
• If the Const. is simply a framework, how do we find concrete
authority?
• Judges interpreting the Const. have the same text, and the text
has one history however complex, however multifaceted.
• But different people believe different things about how history
bears on the enterprise of the Const. interpretation.
• People approach the Cont. with different visions, different
premises and different convictions.
E.g., “I would hope that a wise Latina woman with the
richness of her experiences would more often than not reach a
better conclusion than a white male who hasn’t lived that life.”
Sonia Sotomayor
• Is the Const. simply a mirror in which one sees what one
wants to see?
Questions for Discussion
• Describe the ways in which the framers limited the national
govt’s power under the constitution. Why might the framers
place such limits on the govt they had just created?
• What were the major points of contention between the
Federalists and Anti-federalists? Do you think you would have
sided with the Federalists or with the Anti-federalists? Why?
• The framers of the Constitution were very concerned with
creating an effective system of govt. Yet whenever crises loom
critics charge that the U.S. govt. is too cumbersome and too
filled with checks and balances to promote effective action.
Does the war on terrorism reveal our constitutional govt’s
effectiveness or lack of it? Are there ways in which we benefit
from govt’s occasional lack of efficiency?
12
10/12/2012
Writing Assignment
As the text notes, many amendments to the
Constitution have been proposed, but only a few have
been successful.
1. Identify a proposed, amendment that failed.
2. What was its purpose?
3. Who proposed it and who supported it?
4. Why didn't it pass?
5. How far it go—e.g., passed congress, but failed at
the state level.
6. Would you have supported or not supported this
amendment? Why?
13