Constitutional Foundations



The Framers were versed in the ancient Greek and
Roman philosophical texts (Aristotle, Plato, etc.)
The Framers were strongly influenced by 17th and 18th
century liberal philosophers on economics and
government (Adam Smith, David Hume, John Locke,
the Baron de Montesquieu, etc.)
As such the Constitutional framework represented
conscious philosophic choices:



Democracy as opposed to monarchy or an autocratic form
Representative rather than direct democracy
Encoded protection of individual liberty



The Constitutional Convention was a political
convention assembled to solve a political problem
Formulating the Constitution was a radical
departure from their intended purpose
The document represents compromises among the
assembled representatives of states with diverse
interests




North vs. South
Big states vs. Little states
Agriculture vs. Industry
Slave states vs. Non-slave states
1.
Bicameral Legislature and representation –
compromise between big states and small
states
2.
The 3/5ths Compromise – between the slave
states and the non-slave states


Pluralism: the constitution was a compromise
among interested groups (farmers, landowners, separatists, businessmen, etc.)
Elite Theory: the constitution was a document
founded to protect rich land-owners


Charles A. Beard: An Economic Interpretation of the
Constitution of the United States
“the Constitution [is] an instrument of class
exploitation”




Combined Philosophy & Politics
The Federalist Papers are a series of 85 articles arguing
for the ratification of the United States Constitution.
They were first published serially in New York City
newspapers. A compilation, called The Federalist, was
published in 1788
Authors wrote under the nom de plume of "Publius", in
honor of Roman consul Publius Valerius Publicola..
Most important & influential Federalist Paper was
Federalist #10 dealing with the problem of faction



Federalist No. 10 continues the discussion of a question broached
in Hamilton's Federalist No. 9. Hamilton had addressed the
destructive role of faction in breaking apart a republic
Federalist #10: The Union as a Safeguard Against Domestic
Faction and Insurrection."
He defines a faction as


"a number of citizens, whether amounting to a minority or majority of
the whole, who are united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community."
Federalist #10 Provided the justification for a
republican form of government rather than a direct
democracy.

In a direct democracy, there is no check against the tyranny of
the temporary majority against the minority (see Socrates for
piece de resistance)




Faction cannot be suppressed without crushing
liberty, and creating a homogenous society is
impractical and antipathetic to liberty.
Hence faction must be controlled: harnessed to
serve the state
Madison argues a small democracy cannot
avoid the tyranny of a majority faction
Hence a large representative republic is
necessary to protect against faction



Developed out of the theories of Hobbes &
Locke
As Madison argues, representation is a
practical necessity given the size of the republic
Hinged on:



Developing diverse and competing interests
The nascent concept of government as umpire
Representation is geographic-based under the
Constitution

Ultimate authority rests with the people (the
people are sovereign per Locke)



All government officials are responsible to the
people under the Constitution


Preamble: “We the People of the United States…”
10th Amendment: “The powers not delegated to the
United States by the Constitution, nor prohibited by
it to the States, are reserved to the States
respectively, or to the people.”
Congress, the most directly responsive to the people,
is the 1st branch addressed
Grew from dislike of the King

The colonies had a long history of popular rule





colonial legislatures popularly elected
1750, they were more popular and powerful than
most governors, who were appointed by the crown
only 3 of 13 governors served more than 1 year term
only 1 governor had veto power
most colonial legislatures dealt directly with British
Parliament

Constitution is document of specific,
enumerated powers


Concept developed from writings of John
Locke & Adam Smith



Government is empowered to do only certain things
Smith: An Inquiry into the Nature and Causes of the
Wealth of Nations
Experience with assertive monarchs
Frontier distrust of politicians




Not satisfied with the checks in the original
Constitution, first Congress amends it: Bill of Rights
10th Amendment: power remains with the people
except for those powers specifically delegated by the
Constitution
Caveat: A tension between this founding principle and
the demands of the 20th century emerges
Door was left open for the expansion of federal role in
the economy and society:

Article 1, Section 8, Congress shall “make all laws necessary
and proper” to fulfill enumerated responsibilities.
Baron de Montesquieu’s trias politica or “three branches of
government”
 Argued for specifically in Federalist #51: “The Structure of
the Government Must Furnish the Proper Checks and
Balances Between the Different Departments“ by Madison:
“In a single republic, all the power surrendered by the people is
submitted to the administration of a single government; and
the usurpations are guarded against by a division of the
government into distinct and separate departments. In the
compound republic of America, the power surrendered by
the people is first divided between two distinct
governments, and then the portion allotted to each
subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people.
The different governments will control each other, at the
same time that each will be controlled by itself.”



Republican form of Government (Federalist #10)
A Bill of Rights


Federalism (again #10)


Division of power between state and federal governments
guards against any one faction taking over
Division of government into three branches


to secure certain individual rights against the government
(executive, legislature, & judiciary) as well as different terms
and different constituencies for each
CAVEAT: Are Powers *really* separate?

Separate Branches, Shared Powers
BRANCHES
POWERS
EXECUTIVE
CHECK
LEGISLATIVE
CHECK
JUDICIAL
CHECK
Executive
Sole
Power to
Wage War
Civilian
and
military chains
of command
constrain lowlevel executive
officials to obey
the policies of
higher-ups.
Power
Legislative
Power
May
veto laws
(but this may be
overridden
May refuse to
enforce certain
laws
May refuse to
spend allocated
money
Powers
internal to
the legislature are
split between its
two houses, the
Senate and the
House of
Representatives.
May
Judiciary
Sole
Responsibility
Power
May
to write
laws
Power to enact
taxes, authorize
borrowing, and
set the budget
power to
interpret the law
and apply it to
particular
disputes
to appoint
judges
Power to grant
pardons
war
to declare
to
determine the size
and structure of the
courts
Power to
determine budgets
of the courts
May
declare
actions of the
executive to be
illegal and/or
uncon.l
declare
laws uncon.
and
unenforceable
Determines
which laws
apply to any
given case
only rule
in cases of an
actual dispute
brought
between actual
petitioners





Special case of the separation of powers:
division of power between state and national
governments
Neither can terminate the other (both have a
constitutional right to existence)
Developed from the writings of Montesquieu
and David Hume
Provided the security of Hobbes’s Leviathan
state with the democratic prospects of the
Athenian city-state
Also a practical necessity following Revolution
VIRGINIA PLAN
NEW JERSEY PLAN
Two chamber legislature,
representation based on state
population
Single-house chamber; equal
representation for each state
regardless of population
Lower chamber of legislature
elected by the citizenry; upper
chamber, executive, and courts
elected by the lower house
Legislature has same power as
under Articles, with added
authority to levy taxes and
regulate commerce; can exercise
supremacy clause over state
legislation
Legislature can make any law and Plural executive can be removed
veto any state legislation
by legislature (on petition of a
majority of states); courts
appointed by executive
Council of Revision ( composed of Supreme Court hears appeals in
executive and court) can veto
limited number of cases
legislation, but legislature can
override by majority vote



Madison realized that the bicameral legislature
solves some of the problems that the nation
was encountering.
He wanted it to be reflective of the people’s
will, but he also wanted, to a certain extent, a
detachment from the people
The solution was having the House’s
representation based on population and the
Senate representation based on the States.



In the House, you have to run for office every 2
years and entire house is up for contention.
In the Senate, you have to run for office every 6
years, and only 1/3 of the Senators are up for
re-election.
The Senate was intended to be a more
‘deliberative’ body whereas the House was
supposed to be most responsive to the people.


One nation rather than 13 colonies
Adopted as a resolution to the collective action
problems inherent to the institution of government
under the Articles of Confederation






adopted March 1781
no president, no Supreme Court
in unicameral legislature, each state had one vote
even small matters required 9/13 vote (almost 70%)
large matters required unanimity
most important --- national government could not directly
touch people
 relied on states for taxes, army, navy, etc.

Collective action and other problems inherent
to the system became intractable




Who owned the land west of the of the Allegheny
Mountains? VA or PA?
Tariffs created barriers to economic progress
between the states
How would troops be fed? Clothed?
States facing internal revolt
 Shay’s Rebellion – no standing army to respond

Constitution gave national government
authority over people and states

Collective Action Problem Applied



Under the Articles of Confederation, states were
beset by a structure that prevented them from
sharing the transaction costs inherent to a large
country.
Transaction costs are the time, effort, and
resources required to make collective decisions
Conformity costs are what one party prefers
and the collective required

Thesis: . Federalism is enshrined in the
Constitution, but political conditions have
dictated how the doctrine of federalism has
evolved.

Constitution divides power among:




federal government
state governments
the people
The federal government has three types of
power:
Inherent
 Delegated (Enumerated, Express)
 Implied


Enumerated powers are found in Article 1 Section 8 of
the United States Constitution, which lists the specific
powers of government granted to the United States
Congress.


Chief Justice John Marshall: “This government is
acknowledged by all, to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it,
would seem too apparent, to have required to be enforced by
all those arguments, which its enlightened friends, while it was
depending before the people, found it necessary to urge; that
principle is now universally admitted.”
Enumerated powers include:



Regulate interstate commerce
Coin money
Raise armies

Inherent powers are those powers not specifically
stated in the Constitution, but considered necessary for
any government to carry out its functions.


Derived, in many cases, from the Royal Prerogative
Powers.


Cannot logically be held by both nation and state.
The Royal Prerogative is a body of customary authority,
privilege, and immunity, recognized in common law
jurisdictions possessing a monarchy as belonging to the Crown
alone. It is the means by which some of the executive powers of
government are possessed by and vested in a monarch with
regard to the process of governance of their state are carried out
Examples include the inherent power to



Wage war
Conduct foreign affairs
Right to exist as a nation-state




Implied powers are derived from an enumerated power and
the “Necessary and Proper” clause, a.k.a. the “elastic”
clause. These powers are not stated specifically but are
considered to be reasonably implied through the exercise of
delegated powers.
This clause became the center of controversy from the early
days of the nation when Alexander Hamilton and Thomas
Jefferson tangled over the constitutionality of a national
bank. Their arguments, in one form or another, persist to
today:
The “loose constructionists” (the Hamiltonians or
Federalists) viewed Clause 18 as an opportunity to increase
federal power
The “strict constructionists” (the Jeffersonians or AntiFederalists) believed that Clause 18 limited federal power.
In their opinion, Congress could legitimately exercise only
specified functions (Clauses 1-17); to do otherwise would be
a violation of Amendment X.


President George Washington sided with
Hamilton and supported the establishment of
the First Bank of the United States. The
Federalist position regarding “implied powers”
became part of the national fabric largely
through the decisions of the U.S. Supreme
Court under John Marshall.
Examples of implied powers are vast:



EPA
Interstate highway system
NASA

There are two types of state powers in relation to the
federal government:



Concurrent powers are those exercised jointly with the
federal government



Concurrent
Reserved
Taxes
Environmental protection
Reserved powers are those reserved to the states under
the 10th Amendment


“the powers not delegated to the U.S. by the Constitution nor
prohibited by it to the states, are reserved to the states
respectively, or to the people”
Tension with the elastic clause

Constitution left exact nature of balance
between states and national government vague
by necessity --- states had to be given some
power


Constitution had to be ratified by states
At same time, founders clearly wanted a more
powerful, more flexible national government than
what they had experienced under the Article of
Confederation

There were two competing theories of how
federalism should operate in the early days of
the republic:
Dual Federalism
 Cooperative Federalism


Constitution was a compact among the states—
not the people



Declaration of Independence: ““That these United
Colonies are, and of Right ougt to be Free and
Independent States”
states are not subordinate to the national
government, but rather exist dually on the
same level with it.
Implications


States are supreme in some spheres
States are free to leave the Union at their own
volition



Constitution is a social contract among the
people (see preamble)
As such the national government enjoys the
people’s loyalty directly
Implications


States are subservient to the federal order
States are not free to secede


Historical developments resolved the issue in
favor of cooperative federalism
Five crucial historical factors played a role in
cooperative federalism becoming the dominant
view of federal power





Chief Justice John Marshall
Civil War
Era of the Robber Barons
New Deal
Civil Rights Era