Chapter 3

The Constitution

Chapter 3

3 | 2Copyright © Cengage Learning. All rights reserved.

The RevolutionaryRoots of the Constitution

• Characteristics of the U.S. Constitution

– Just 4,300 words long– Divides the national government into three branches

– Describes the powers of those branches and their connections

– Outlines the interaction between the government and the governed

– Describes the relationship between the national government and the states

– It is the supreme law of the land.

3 | 3Copyright © Cengage Learning. All rights reserved.

The RevolutionaryRoots of the Constitution

• Freedom in Colonial America

– American colonists in the 18th century enjoyed a degree of freedom denied most people around the world

– But there was a high cost: colonists needed protection from the French and their Native American allies during the Seven Years’ War

– The English wanted the American colonists to pay for that protection

• The Road to Revolution

– The catalyst: taxation by a government in which the colonists had no representation

– The First Continental Congress was convened in Philadelphia in September 1774

3 | 4Copyright © Cengage Learning. All rights reserved.

The RevolutionaryRoots of the Constitution

• Revolutionary Action

– By early 1775, the fighting had already begun

– The Second Continental Congress remained in session to serve as government to the colony-states

• The Declaration of Independence

– Thomas Jefferson took the first official step toward revolution and independence by drafting the Declaration of Independence: the document that proclaimed the right of the colonies to separate from Great Britain

– The Declaration was based in social contract theory: the belieft that the people agree to set up rulers for certain purposes and thus have the right to resist or remove rulers who act against those purposes

– The war lasted until October 1781 with the Lord Cornwallis’ surrender at Yorktown, Virginia

3 | 5Copyright © Cengage Learning. All rights reserved.

From Revolution to Confederation

• A republic was created

– A government without a monarch

– A government rooted in the consent of the governed, whose power is exercised by elected representatives responsible to the governed

• The Articles of Confederation

– Confederation: a loose association of independent states that agree to cooperate on specified matters

• Each state has supreme power within its borders

• The central government is weak

– Articles of Confederation: the compact among the 13 original states that established the first government of the United States

3 | 6Copyright © Cengage Learning. All rights reserved.

From Revolution to Confederation

• The Articles of Confederation failed

– The national government had no power to tax

– There was no independent leadership position to direct the government

– The national government could not regulate interstate and foreign commerce

– The Articles of Confederation could not be amended without the unanimous agreement of the congress and assent of all state legislatures

• Disorder Under the Confederation

– Shays Rebellion highlighted the impotence of the confederation

– The government needed to be able to suppress insurrections and maintain domestic order

3 | 7Copyright © Cengage Learning. All rights reserved.

From Confederation to Constitution

• A convention was convened to revise the Articles in Philadelphia in 1787

– 12 of the 13 states sent delegates

– Delegates were highly educated but also practical politicians

– Almost immediately, they began to work on a new document

3 | 8Copyright © Cengage Learning. All rights reserved.

From Confederation to Constitution

• The Virginia Plan– Three separate branches of government: legislative, executive, and judicial

• Legislative: the law-making branch

• Executive: the law-enforcing branch

• Judicial: the law-interpreting branch

– A two-house legislature: the lower house chosen by popular election; the upper house chosen from candidates nominated by state legislatures

– Each state’s representation in the lower house would be determined in proportion to the taxes it paid to the national government or in proportion to its free population

– An executive, consisting of an unspecified number of people, be selected by the legislature and serve for a single term

– The national judiciary should include one or more supreme courts and other lower courts, with judges appointed for life by the legislature

– The executive and a number of national judges would serve as a council of revision, to approve or veto legislative acts, subject to override by a vote of both houses of the legislature

– The scope of powers of all three branches be far greater than the previous powers under the Articles of Confederation and that the legislature be empowered to override state laws

3 | 9Copyright © Cengage Learning. All rights reserved.

From Confederation to Constitution

• The New Jersey Plan

– A single-chamber legislature has the power to raise revenue and regulate commerce

– That the states have equal representation in the legislature and choose its members

– A multiperson executive be elected by the legislature, with powers similar to those in the Virginia Plan, but without the right to veto legislation

– That a supreme tribunal be created, with limited jurisdiction (no national court system)

– The acts of the legislature be binding on the states with the option of force to compel obedience

3 | 10Copyright © Cengage Learning. All rights reserved.

From Confederation to Constitution

• The Great Compromise

– A bicameral legislature

– The House of Representatives is apportioned according to population

– The states are represented equally in the Senate

• Compromise on the Presidency

– Delegates rejected the idea of popular election

– Created the electoral college: a body of electors chosen by voters to cast ballots for president and vice presiden

– Involved both the legislature and the judiciary in the presidential removal process, and demanded an extraordinary majority vote to remove the executive

3 | 11Copyright © Cengage Learning. All rights reserved.

The Final Product

• The Basic Principles

– Republicanism: a form of government in which power resides in the people and is exercised by their elected representatives

– Federalism: the division of power between a central government and regional units

– Separation of Powers: assignment of the lawmaking, law-enforcing, and law-interpreting functions of government to independent legislative, executive, and judicial branches

– Checks and Balances: a government structure that gives each branch of government some scrutiny of and control over the other branches

3 | 12Copyright © Cengage Learning. All rights reserved.

The Constitutionand the Electoral Process

3 | 13Copyright © Cengage Learning. All rights reserved.

Separation of Powersand Checks and Balances

3 | 14Copyright © Cengage Learning. All rights reserved.

The Final Product

• Article I: The Legislative Article

– Article I, Section 8 establishes the principle of enumerated powers in which Congress may exercise only the powers that the Constitution assigns to it by the “necessary and proper clause”

– The last clause of Article I, Section 8 is the “necessary and proper clause,”

• Establishes Congress’ implied powers

• Implied powers: those powers that Congress needs to execute its enumerated powers

3 | 15Copyright © Cengage Learning. All rights reserved.

The Final Product

• Article II: The Executive Article

– Establishes the president’s term of office– Establishes the procedure for electing the president

through the electoral college

– Describes the qualifications for becoming president

– Defines the president’s duties and powers

3 | 16Copyright © Cengage Learning. All rights reserved.

The Final Product

• Article III: The Judicial Article

– Left purposely vague due to disagreement over its provisions

– Congress established a system of federal courts, separate from state courts

– Article III does not explicitly give the courts the power of judicial review or authorize the court to invalidate congressional or presidential actions

3 | 17Copyright © Cengage Learning. All rights reserved.

The Final Product

• The Remaining Articles

– Article IV

• Requires that the judicial acts and criminal warrants of each state be honored in all other states

• Forbids discrimination against citizens of one state by another state

• Allows the addition of new states

• Stipulates that the national government will protect the states against foreign invasion and domestic violence

– Article V: Method for Amending the Constitution

– Article VI: Contains the supremacy clause: national laws take precedence over state and local laws when they conflict

– Article VII: Ratification

3 | 18Copyright © Cengage Learning. All rights reserved.

The Final Product

• The Framers’ Motives

– Charles Beard argued that the Constitution was written by wealthy men to advance their own interests

– Research has shown that government was not created to protect the wealth of the founders

– Single most important issue: inability of national or state governments to maintain order under the Articles of Confederation

3 | 19Copyright © Cengage Learning. All rights reserved.

The Final Product

• The Slavery Issue

– Question could not have been resolved at the Constitutional Convention

– Came to the surface in the debate on representation in the House (resolved by the “3/5 clause”)

– Another central issue: the slave trade

• Compromise: it would not be ended before 20 years had elapsed

• Fugitive slaves would be returned to their masters

– The founders essentially condoned slavery without mentioning it by name

• Many of them agonized over it, but few did anything – they expected it to “wither away”

• They were unable to transcend the limitations of the age in which they lived

3 | 20Copyright © Cengage Learning. All rights reserved.

Selling the Constitution

• Federalists and Anti-federalists debated the merits of the new Constitution, as evidenced by the writings contained in the Federalist papers

• The Bill of Rights emerged as a concession to gain the required number of votes needed for passage

– The first ten amendments to the federal constitution

– Prevent the national government from tampering with fundamental rights and civil liberties

– Emphasize the limited character of the national government’s power

3 | 21Copyright © Cengage Learning. All rights reserved.

Constitutional Change

• The Formal Amendment Process

– Requires a two-stage process, proposal and ratification

– Both are necessary for an amendment to become part of the Constitution

• Interpretation by the Courts

– Marbury v. Madison (1803) declared courts have power to nullify government acts that conflict with the Constitution

– Has influenced the meaning and application of provisions of the Constitution

• Political Practice

– Has altered distribution of power without changing the Constitution

– Example: President has come to overshadow Congress

3 | 22Copyright © Cengage Learning. All rights reserved.

Amending the Constitution

3 | 23Copyright © Cengage Learning. All rights reserved.

An Evaluation of the Constitution

• Constitution lays out simple STRUCTURAL framework for government

• Freedom, Order, & Equality in the Constitution

– Provides a judicious balance between order and freedom

– Pays virtually no attention to equality

– Social equality is implicitly addressed in the 16th Amendment, permitting national income tax

– Political equality is addressed in 14th, 15th, 19th, 23rd, 24th, 26th and 28th Amendments

• The Constitution and Models of Democracy

– Well-suited to pluralist model

– Often at odds with majoritarian model

– Created a REPUBLIC, based on majority consent -- not a DEMOCRACY, based on majority rule