Chapter 2
Chapter 2: The Constitution and the Founding
Chapter Review
The U.S. Constitution structures nearly every facet of American life, from deciding
who wins an election (as in the 2000 presidential election) to stating whether a
police officer can legally search your car on a routine traffic stop. From the onset,
the Constitution has been a conflictual document: the Founders fought over which
provisions would be included in it and how they would be presented. Today, the interpretation
of the Constitution remains the battleground of heated debates on the legality of
abortion, same-sex marriage, or the treatment of prisoners. In spite of the importance
Americans place on this document, we know relatively little about how it was written
and what is included in it.
Following the Revolutionary War, the first attempt at an American government was
known as the Articles of Confederation.
- Because the Framers feared the development of an American monarchy, the Articles
of Confederation outlined a very limited government for the United States.
- Congress was the central branch of government: there was no judicial branch or president.
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Congress had little power over the states and could not force them to pay taxes,
regulate trade, or maintain an army.
- By 1787, the Founders agreed that the Articles of Confederation led to a union that
was too weak to defend itself, and met to consider a new agreement.
While the Founders agreed that they a representative democracy, they differed in
their concerns about the self-interested nature of people, coupled with regional
economic differences.
- They wanted a republican democracy where the views of the people were represented
by popularly elected leaders.
- Leaders have to be regularly elected by their constituents.
- The central
purpose of government is to protect the natural rights of its citizens.
- The belief in the “consent of the governed” was conflicted with a belief that people
are naturally self-interested.
- James Madison set out to devise a system that had separated powers, keeping itself
from overexerting its power.
- The biggest problem in government is to keep the
problem of self-interest from dominating the entire system.
- The Constitution was also influenced by the differing economic conditions across
the country.
- The framers of the Constitution were among the elite of early American society.
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Unlike many European countries of the time, which had large peasant or serf populations,
the majority of the early Americans were farmers or middle-class craftsmen, resulting
in diffuse economic power.
- The southern economy was predominantly dependent
on slave labor and exporting cash crops, while the northern states had smaller farms
and more promise of commercial development.
In the Constitutional Convention, the framers organized along two big dividing lines:
the Federalists, who supported a strong national government and relatively weak
state governments; and the Antifederalists, who supported a weaker national government
and relatively strong state governments. In the Constitutional Convention, the framers
grappled over five major issues, each of which threatened the delicate balance of
the Constitutional Convention
- Majority Rule versus Minority Rights
- A self-interested majority could very easily trample over minority rights, but if
too many small self-interested groups were protected by the government, the power
of the democracy would be undermined.
- Madison advocated the notion of pluralism
as the solution to this problem, arguing that if enough groups of people had access
to the political system, no one group would assume total control.
- Small State versus Large State
- If representation in the national legislature was based on state population, as
the Virginia Plan suggested, congressional action would disproportionately favor
the bigger, more populous states.
- If representation in the national legislature
was given on a “one state, one vote” basis, as the New Jersey Plan suggested, congressional
action would give more voice to the smaller, less populous states.
- The Great
Compromise was reached under the Connecticut plan, which made the Congress a two-chambered
organization. The Senate has two senators from every state, while the House of Representatives
is composed of representatives based on the population of the state.
- Legislative versus Executive Power
- How should power be divided in the national government? The Founders agreed that
an executive would be necessary, but many feared putting too much power in the hands
of one person, lest he become too much like a monarch.
- They created an executive
with relatively few enumerated powers, though they did allow the president some
power over the legislative branch in the form of the veto.
- The Founders also
struggled in deciding how the president should be elected. They argued against a
parliamentary system, where the president is elected from the legislative branch,
because they wanted power to be more diffuse: they did not want the president to
have to answer to Congress.
- They decided to compromise on the Electoral College,
where presidents were elected through a system that allotted votes to the various
candidates according to the number of representatives and senators in each state’s
delegation.
- National Power versus State and Local Power
- To help assuage the concerns of the Antifederalists, who preferred a weaker national
government, the Constitution included the Tenth Amendment, which limited the reach
of national power into the states.
- Federalists, who favored a strong national
government, were able to include the national supremacy clause, which stipulated
that national law trumps state law if the two ever conflict.
- Slave States versus Nonslave States
- Dispute over slavery was settled in two ways: splitting the difference and logrolling.
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Splitting the difference
- Slave states argued that slaves should not be counted in the state’s population
when determining a state’s tax burden, but that they should count toward the House
of Representatives, increasing the number of southern delegates in Congress.
-
Nonslave states argued that should be counted in determining a state’s tax burden,
but that they should not count in determining the number of representatives southern
states had in the House.
- In the end, the states reached the Three-fifths Compromise,
which allowed for slaves to count as three-fifths of a person when deciding representatives
in the House and state taxes due to the national government.
- Logrolling
- Nonslave states agreed to return captured runaway slaves to slave states in exchange
for the opportunity for Congress to regulate commerce and tax imports.
- Nonslave
states agreed to allow slave importation, though only until the year 1800.
After the Constitutional Convention adjourned, states harbored serious reservations
about the new Constitution.
- Antifederalists worried that the single, central executive would be too much like
a king, that the states would pay more money to the national government than they
would receive in services, and that the larger more powerful national government
would significantly constrain civil liberties.
- The Federalists countered these
problems by publishing the Federalist Papers, which were a series of articles in
newspapers that swayed public opinion in favor of the stronger national government.
-
In addition, the Federalists agreed to add the Bill of Rights to the Constitution,
which outlined how individual rights and liberties would be protected under the
new government.
The most important feature of the Constitution is the provision for separated powers
and checks and balances. These are broken down into three categories: exclusive
powers, shared powers, and negative powers.
- Exclusive Powers
- Congress is the only branch with the power to raise taxes, regulate commerce, declare
war and maintain a military. In addition to having more enumerated powers than any
other branch of government, Congress also benefits from the elastic clause, which
gives it the power to pass laws that relate to its exclusive power.
- The executive
branch has the power to issue pardons, receive ambassadors and foreign ministers,
and execute laws from Congress.
- The judicial branch was created as the weakest
branch, without many exclusive powers. The judicial branch does enjoy lifetime appointment
for justices.
- Shared Powers
- While Congress has the power to declare war, the president enjoys the power to use
American troops in operations without a formal declaration of war.
- The president
can negotiate treaties with foreign countries, but they are subject to Senate approval.
- Negative Powers
- Congress has the most significant checking powers in the government.
- Impeachment of the president
- Given the power of the purse, Congress also
controls the budget of the government allowing it to exert its will over executive
offices.
- Presidential appointments must be ratified by the Congress.
- The president has two major checking powers.
- Legislation passed by the Congress is vulnerable to a presidential veto
-
The president appoints justices to the Supreme Court.
- The courts had no checking powers in the Constitution.
- Judicial review was established by John Marshall in 1803, which gave the Supreme
Court the ability to strike down a law or executive action if it was deemed unconstitutional.
The Constitution is over 200 years old. How does it remain relevant in a world very
different from the one that it was conceived in?
- Some parts of the Constitution are ignored.
- Congress meets almost year round, a far cry from the once a year stipulation, as
is provided in Article I, Section 4.
- Some key parts of the Constitution are ambiguous.
- Many of the enumerated powers are rather vague.
- The elastic clause and the executive powers clause are both quite vague in describing
what roles Congress and the president serve.
- The commerce clause gives Congress
the right to regulate commerce, but there is significant controversy over what the
key words mean.
- Some parts of the Constitution were changed.
- The Founders agreed that the ability to change the Constitution was important, but
they did not want to allow frivolous changes to occur.
- They settled on two pathways
to constitutional amendments:
- Amendments must be passed by a two-thirds majority in both the House and Senate.
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Alternatively, amendments can be passed in a national convention that has the support
from three-fourths of state legislatures.
- The Constitution can be interpreted differently by different people.
- The Constitution includes several powers that are not explicitly stated, which are
known as implied powers.
- How these implied powers are interpreted can yield
dramatically different results.
- Today, arguments against the death penalty are based on the Eighth Amendment’s prohibition
of “cruel and unusual punishment.” However, capital punishment was not interpreted
as cruel and unusual punishment 200 years ago, when it was even used on horse thieves.