Interpreting the Constitution
Charles Beard, An Economic Interpretation
of the Constitution
John Roche, A Reform Caucus in Action
Martin Diamond, A Reconsideration of the
Framers Intent
William Riker, Trading Votes at the
Constitutional Convention
Gordon S. Wood, How Democratic Is the
Constitution, The Constitution: a Biography
Jeffrey Toobin, Our Broken Constitution
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Argument
Evidence
Analysis
Implication
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Argument the Constitution was
written by a "cohesive" economic / propertied
elite- landholders (7), plantation owners (14),
creditors, merchants (13), public bondholders
(11), and lawyers (35).
Seeking to protect their personal property
(especially bonds) and economic standing.
A Conservative Counter Revolution
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Data-EvidenceEconomic elite 55 of 72
President of Convention- wealthiest landowner in
the country
Shared common perspective
"In their speeches in Philadelphia, their private
letters [ . . . ], and their newspaper essays, the
Framers made it abundantly clear that they expected
the Constitution to benefit creditors and Americans
who had speculated, whether in Indian land or war
bonds."
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Limited the power of popular majorities
Article VI - the new government was to
guarantee all debts
Article I - clause prohibiting states from
impairing contracts
Create a national army strong enough to
take the Indians' land
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Anti - Federalists
-largest creditors- George
Mason
-biggest bondholders, Elbridge
Gerry
Federalist
Alexander Hamilton
James Madison
Charles Beard, An Economic Interpretation of the
Constitution of the United States, 1913
Article VI - the new government was to
guarantee all debts
Restore government’s credit rating
Article I - clause prohibiting states from
impairing contracts
Easier for creditors to borrow money
Create a national army strong enough to
take the Indians' land
Looking for cheap land
John Roche, “The Founding Fathers: A
Reform Caucus in Action”
Argument
His view of founders?
Evidence
Data
John Roche, “The Founding Fathers: A
Reform Caucus in Action”
View of Founders
“were first and foremost superb democratic
politicians.”
Hamilton and Madison were “inspired
propagandists.”
Shared perspective- “how to construct a
national government” that people would accept
John Roche, “The Founding Fathers: A
Reform Caucus in Action”
Evidence/Data
transcripts of convention
no discussion of checks and balances,
separation of powers.
Constitutional Evidence
Federalism- no legislative supremacy
Electoral College-
Diamond
Argument?
Evidence?
Implications?
brown = voter approved constitutional gay marriage
ban; not shown 41 state legislatures passed ban as
well
Trading Votes at the Constitutional Convention, William
Riker
Two main issues:
1. Navigation Acts: Bar British ships from US ports
Should Congress pass by:
i.
Simple Majority?
ii. 2/3 Majority?
2.
Slave Trade: key to Southern States
Should slavery be prohibited:
Immediately
At some point in the future (e.g., 1800+)
Trading Votes at the Constitutional Convention
Position on Prohibition of Slavery
Immediate
Position on
Navigation Acts
Delay
Simple Majority
Simple,
Immediate
Simple, Delay
2/3 Majority
2/3, Immediate
2/3, Delay
Trading Votes at the Constitutional Convention
Most Desired
Least Desired
Eastern & Middle
States
Southern States
Virginia
Simple Majority;
Immediate
2/3 Majority;
Delayed
2/3 Majority;
Immediate
Simple Majority;
Delayed
Simple Majority;
Delayed
2/3 Majority;
Delayed
2/3 Majority;
Immediate
2/3 Majority;
Immediate
Simple Majority;
Immediate
2/3 Majority;
Delayed
Simple Majority;
Immediate
Simple Majority;
Delayed
Trading Votes at the Constitutional Convention
The 3/5 Dilemma
On what basis should House seats be apportioned?
South wanted to offset the North’s population advantage
Obvious connection to importation of slaves:
“Are they [slaves] men? Then make them citizens and let
them vote? Are they property? Why then is no other
property included?” (Gouverneur Morris)
Trading Votes at the Constitutional Convention
The 3/5 Dilemma
Morris sees moral and strategic problems:
“What is the proposed compensation to the Northern States
for a sacrifice of every principle of right, of every impulse
of humanity?”
Trading Votes at the Constitutional Convention
The 3/5 Dilemma
Morris sees moral and strategic problems:
“On the other side the Southern States are not to be
restrained for importing… nay they are to be encouraged
to it by an assurance of having their votes in the Natl.
Govt. increased in proportion…”
Trading Votes at the Constitutional Convention
Report of Committee on Detail Article VII (Sec 4 – 6):
Section 4. Clause 1: No tax or duty by Congress on state
exports
Section 4. Clause 2: Nor on migration or importation of
persons
Section. 4. Clause 3: nor shall migration or importation be
prohibited
Section 6: No navigation act shall be passed without assent
of 2/3 of members present in each House
Trading Votes at the Constitutional Convention
The Southern Response
“The Southern States could not be members of
the Union if the clause [i.e., Art VII, Sec 4, cl. 23] should be rejected.” Williamson (NC)
Trading Votes at the Constitutional Convention
Morris increases the pressure
delete “persons” in Sec. 4.2, and substitute
“slaves into North Carolina, South Carolina, and
Georgia.”
Trading Votes at the Constitutional Convention
The Southern Response
“...if himself and all his colleagues were to sign the
Constitution and use their personal influence, it
would be of no avail toward obtaining the assent of
their Constituents.” Charles Pickney (SC)
What makes these threats credible?
Trading Votes at the Constitutional Convention
The Strategic Situation
Refuse
Insist on Immediate
Prohibition
S
Accept
NE
Accept Delayed
Prohibition
S
Refuse
Accept
Trading Votes at the Constitutional Convention
The Strategic Situation
Refuse
Insist on Immediate
Prohibition
S
Accept
NE
Accept Delayed
Prohibition
S
Refuse
Accept
Not a sensible outcome
Trading Votes at the Constitutional Convention
The Strategic Situation
Refuse
Insist on Immediate
Prohibition
S
Accept
NE
Accept Delayed
Prohibition
S
Refuse
Accept
No Union: A disaster for all
(federalist) delegates
Trading Votes at the Constitutional Convention
A Vote Trade
With ratification on the line, Morris proposed:
“…the whole subject to be committed including
clauses relating to the tax on exports and to a
navigation act. These things may form a bargain
among the Northern and Southern States.”
Amar’s Argument
More Democratic
Ratification process
Voting rights
Religion/Titles
Democratic tilt
More Slavocratic
Pro-slave bias
#1 National Security
Federalist #s 1-6, 8-9
Slave-ocratic
Electoral College
no direct election- “Southern States could have
no influence in the election on the score of
Negroes.“Virginian James Madison
South gets electoral college lock
VA- 12 out of 46 votes needed to win
32 out of 36 years, VA is president
John Jay, Fed #s 2-6
Concerning Dangers from
Foreign Force and Influence
Pluribus to Unum
Why is America Democratic?
American liberty over the last two centuries has
been protected not just by parchment barriers in
the constitution, legislative bicameralism,
separation of powers, and federalism, but also by
our oceans, which have shielded Americans from
a variety of Old World tyrants, and by our lack of
a large standing army on American soil in
peacetime. This entire system of liberty-protection
depended on the impermissiblity of one state—or
one region—having the unilateral right to
secede. Akhil Reed Amar 2005
Assessing the Framers
Beard-- Elite Conspiracy
Federalists all wealthy planters and merchants
trying to get rich
Roche-- Sound Politicians
political expediency is the driving principle
Electoral college
Riker
Politicians representing economic interests
Diamond -- Brilliant Political Theorists
We are all Constitutionalists now
“Conservative or liberal, we are all
constitutionalists,” Barack Obama
The Founding Fathers “crafted the most
miraculous political document ever
conceived, our Constitution.” Senator Ted
Cruz, R-TX
Conservative Critique
Liberal Critique
Conservative Critique
Term limits
Repeal 17th
Amendment
Limit federal
spending/taxation
State check on
Congress
Others
repeal birthright
citizenship
one nation under god
Liberal Critique
Gerrymandered Senate
Direct election of president
Limits on Supreme Court
Overturn Citizens United
partisan bias of Constitution
The Broken Constitution
Progressive Critiquetoo many barriers to govt action
More majoritarian
Conservative Critique
Need more checks on govt
too easy for govt actions
Restore limited govt
Akhil Amar’s critique
“One half of one of our two great
political parties has gone bonkers.
That’s the problem. Not the
Constitution.”