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The Constitution
The U.S. Constitution
What is a Constitution?
• Document or set of documents that set forth the basic rules
and procedures for how a society shall be governed
– The United States did not start out as a Constitutional
Democracy, rather the end of the Revolutionary War
brought about a confederacy consisting of 13 independent
states.
– A Confederacy is where the people give power to the
individual states who in turn give limited authority to a
central authority.
Toward Independence
Before the United States of America came into existence,
colonial America was under the control of the British.
• What led events led to the Revolutionary War?
– Colonial citizens believed they had all of the rights of
British subjects back home, however they were facing a
variety of taxes and ordinances that were passed without
their consent and that they considered oppressive.
• Sugar Act of 1764
• Stamp Act of 1765
• Townshend Acts
Boston Tea Party
• As taxes were raised as a result of the Townshend Acts,
protests became commonplace in the colonies.
• In 1773, the King granted the exclusive rights to sell tea to the
colonies to the East India Company.
– Angered over the taxes and the tea monopoly, colonists
disguised as Indians dumped a ship load of tea in the
Boston Harbor (Boston Tea Party).
• The British reacted by passing the Coercive Acts and by
sending more troops to the colonies to enforce the law,
oftentimes violently.
The First Continental Congress
In an attempt to present a united front about colonial
grievances, Benjamin Franklin proposed a Continental
Congress, which was held in Philadelphia in 1774.
• Rejected reconciliation and sent King George III a list of
grievances.
• Adopted a compact to boycott the importation of
British goods.
• Agreed to hold a Second Continental Congress in May
of 1775.
The Second Continental Congress
The Second Continental Congress began with the thought of
a possible reconciliation with Great Britain still in mind.
• However, as a result of increased violence by British
soldiers, reconciliation no longer seemed a viable option, and
instead, an army under the command of George Washington
was raised.
“Common Sense”
• “Common Sense” by Thomas Paine
– In order to get loyal British citizens to rebel against their
country, Thomas Paine was commissioned to write a letter
to be published in the colonial papers and distributed
throughout the colonies.
» “ These are the times that try men’s souls. The summer soldier and
the sunshine patriot will, in this crisis, shrink from the service of
their country; but he that stand by it now deserves the thanks of
man and woman. Tyranny, like hell, is not easily conquered; yet we
have this consolation with us, that the harder the conflict, the more
glorious the triumph. . .Heaven knows how to put a proper price
upon its goods; and it would be strange indeed if so celestial an
article as FREEDOM should not be highly rated.”
The Declaration of Independence
The Declaration of Independence was written by Thomas
Jefferson in 1776, and ratified by the Continental Congress on
July 4th of that year.
• Jefferson borrows heavily from Locke, including Locke’s
notion of “natural rights” with the slight modification
of “life, liberty, and the pursuit of happiness”.
The Articles of Confederation
The newly independent countries would need a new rule of
law to guide them. The Continental Congress set up the
Articles of Confederation.
• National government with a congress able to make
peace, coin money, control the post office and
negotiate with Indian tribes
• Maintenance of state sovereignty
• One vote per state in a unicameral congress
• Vote of 9 states to pass any measure
• Unanimous vote for an amendment
• State legislatures select and pay own representatives
Problems With the Confederacy
The Confederacy would not last long, mostly due
to inherent problems with the Articles.
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Could not get 9 votes to conduct business
Could not raise taxes to pay debts
No central treasury to back currency
No regulation of commerce
No leadership
No federal judiciary to deal with economic or boundary
disputes
Shays’s Rebellion (1786)
Revolt by Massachusetts farmers against heavy debts; helped
convince states that neither the state nor federal
governments were functioning properly.
• Led to the Constitutional Convention in 1787
– Meeting by twelve states to revise the Articles of
Confederation; ended up proposing an entirely new
Constitution.
– 55 delegates including James Madison, George
Washington, Benjamin Franklin and, eventually,
Thomas Jefferson.
Shays' Rebellion (1786)
Daniel Shays led a
protest movement of
debt-ridden farmers
facing foreclosures
on their homes and farms.
Demanding lower taxes
and an issuance of paper
money, they engaged in
mob violence to force
Massachusetts courts to
close.
Large vs. Small States
The Virginia Plan
• Madison’s proposal at the Constitutional Convention to radically
strengthen the national government.
• Bicameral legislature with proportional representation
• National executive and a national judiciary, both chosen by the legislature
The New Jersey Plan
• Counterproposal to the Virginia Plan, aimed to strengthen the
Articles of Confederation but left the basic workings of the Articles
intact.
• One house Congress with equal representation in Congress
• Congress given the authority to tax and regulate commerce
• National executive chosen by the legislature, but national judiciary chosen
by the executive.
Connecticut Compromise
The Connecticut Compromise offered a third solution whereby
legislative representation in the lower chamber is based on
population and the upper chamber provides equal
representation of the states.
Northern States vs. Southern States
Compromises over the issue of slavery came in three forms.
• The importation of slaves was permitted until 1808 but then
prohibited thereafter
• The three-fifths compromise said that while slaves were not
considered people, they would be counted as three-fifths of a
person for the purposes of determining representation in the
House of Representatives
• the Northwest Ordinance prohibited slavery in the western
lands north of the Ohio River (eventually the states of Ohio,
Indiana, Illinois, Michigan, Wisconsin, and parts of
Minnesota), but also provided that fugitive slaves who
escaped to the territory would be returned to their owners.
The Impact of Counting Slaves for
Purposes of Representation
The Ratification Process
Ratifying the Constitution was not easy as many voices emerged
in opposition both to a strong national government and to the
specific provisions (or lack thereof) in the Constitution.
• Federalists were those who supported the Constitution and a
strong national government during the ratification process.
• Antifederalists were those who opposed the Constitution and
a strong national government during the ratification process.
Federalists
The Federalists included men like James Madison and
Alexander Hamilton, who, along with John Jay, wrote the
Federalist papers.
• The Federalist papers are a series of 85 essays written by
James Madison, Alexander Hamilton, and John Jay arguing for
the ratification of the Constitution.
Antifederalists
The Antifederalists included men like Patrick Henry and
Thomas Paine who had serious concerns about the Constitution.
Two provisions in particular disturbed the Antifederalists.
• General Welfare Clause
– Gives Congress the power to tax to provide for the
general welfare
• Necessary and Proper Clause
– Found in Article I Section 8, it gives Congress the power to
pass all laws necessary and proper to the powers
enumerated in Section 8
The Ratification Process continued
The states selected special representatives to vote at ratification
conventions.
• The Constitution was signed by 39 delegates to the
Constitutional Convention
• It became effective in the states that ratified it after 9
of the 13 ratifying conventions passed it.
The Structure of the Constitution
The final document was short, only seven articles long.
• Article One established a bicameral legislature, with a Senate
(upper house) and House of Representatives that had the
power to tax and pass laws.
• Article Two established the executive branch with a single
executive known as a President who was chosen by an
Electoral College, rather than through the direct vote of the
citizens.
• Article Three established a national judiciary with a Supreme
Court that had final authority in the realm of appeals and
original jurisdiction in special cases involving state disputes
or foreign ambassadors. The rules governing the federal
judiciary would be established by Congress, but the
members of the federal courts would be nominated by the
President and ratified by the Senate.
The Structure of the Constitution
continued
• Article Four explained relations between the states and
the national government and set up policies for admitting
new states .
• Article Five explained the process for amending the
Constitution.
• Article Six contained the supremacy clause and the
banning of religious tests and prerequisites for office.
• Article Seven explained how to ratify the Constitution.
Constitutional Principles
In addition to those things already mentioned, the Constitution
also contained some very basic but important principles.
• Federalism
– System of government in which sovereignty is constitutionally divided
between national and state governments.
• Separation of Powers
– Government structure in which authority is divided among branches
(executive, legislative, and judicial), with each holding separate and
independent powers and areas of responsibility.
• Checks and Balances
– Government structure that authorizes each branch of government
(executive, legislative, and judicial) to share powers with the other
branches, thereby holding some scrutiny of and control over the other
branches
What’s Missing
While the framers did a respectable job of establishing the new
government, the new Constitution offered little in the way of
individual civil liberties.
• Federalists argued that it was not necessary or, even worse,
potentially dangerous in that a list of rights could be perceived
as a limit on rights.
• Antifederalists, like Patrick Henry, felt that Constitution
without a bill of rights would allow the government the right
to trample on the civil liberties of individual citizens.
The Amendment Process
Checks and Balances
The Bill of Rights
As part of the fight over ratification, the Federalists agreed that
they would propose a Bill of Rights once the new Constitution
was ratified.
• The states proposed a variety of rights, but ultimately it was
Thomas Jefferson and James Madison who delivered the final
ten amendments that were ratified in 1791.
– “A bill of rights is what the people are entitled to against
every government on earth, general or particular, and
what no just government should refuse, or rest on
inference.”
-Thomas Jefferson
The Bill of Rights continued
1.
2.
3.
4.
5.
Freedom of speech, assembly, the press, and religion
Right to bear arms
Freedom from quartering soldiers in peace time
Freedom from unreasonable search and seizure
Right to a grand jury indictment: protection against double jeopardy:
protection against self incrimination: right to due process
6. Speedy trial and confrontation of witnesses
7. Trial by jury
8. Protection from excessive bail and cruel and unusual punishment
9. Granting of certain rights does not imply the absence of others
10. States’ rights
Expanding Rights: Other Amendments
While the Bill of Rights offered civil liberties to some Americans, it would take
many years before the Constitution was amended to protect most citizens
against government abuse.
• Civil War Amendments
– 13th Amendment
• Abolished Slavery
– 14th Amendment
• All people born in the United States are citizens of the United
States and the State in which they reside.
• States cannot violate the civil liberties of United States Citizens
– 15th Amendment
• Universal Male Suffrage
Other Amendments continued
• 17th Amendment
– Direct election of Senators
• 19th Amendment
– Universal Female Suffrage
• 23rd Amendment
– Citizens living in the District of Columbia can vote in Presidential
elections.
• 24th Amendment
– Banning of Poll Taxes in Federal Elections
• 26th Amendment
– The right to vote for those over the age of 18.
Constitutional Interpretation
The Constitution has also changed through interpretation.
• Judicial Review
– Authority of courts to declare laws passed by Congress and
acts of the executive branch to be unconstitutional
– But it was unclear in the Constitution that the courts
actually had this power in the Constitution
• Marbury v. Madison
– Supreme Court case where the power of judicial
review was established by the Marshall Court
Expanding the Power of Congress
• In the 1930s Congressional authority to tax was expanded.
Now Congress can tax for virtually any purpose not prohibited
by the Constitution.
• Congress has expanded its authority to regulate commerce.
The Rise of Parties
Although political parties are not mentioned in the Constitution (and,
in fact, Madison tried to limit their effects as explained in Federalist
10), political parties have played a major role in our Constitutional
democracy since the beginning.
• Hamilton established the Federalist Party
• Jefferson and Madison established the Democratic
Republican Party
– Today we tend to have divided government, which is
when one party controls the executive branch and the
other party controls the legislative branch. This is not
always the case. President George W. Bush faced a
united government for part of his term in office, and
President Obama began his term with united
government.
Policy Making in a Constitutional System
Checks and balances and federalism combine to make
government inefficient. This means that policy making is
more difficult in a Constitutional system than in a
Parliamentarian system.
• Death Penalty
– 8th Amendment’s prohibition on “cruel and unusual
punishment”
– 14th Amendment’s prohibition on the state taking the life,
liberty of property without due process
– Furman v. Georgia (1972)
– Gregg v. Georgia (1976)
The Death Penalty
Focus Questions
• In what ways did the Constitution ensure that government
would be responsive to the people? How has government
become more responsive since 1787?
• In what ways did the Constitution seek to control the popular
will and ensure order?
• In what ways did the Constitution seek to control government
itself?
• In what ways did the nation’s founding documents promote
equality? In what ways did they fail to promote equality?
• Is the Constitution a gate or a gateway to American
democracy? Is it a gatekeeper? Explain.