Constitutional Foundations: Instutionas and Compromises 2009

Constitutional Foundations:Institutions & Compromises

Barbour and Wright, Chapter 2

Wednesday, February 11, 2009

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Purpose of Government• All governments must have power to:

• Legislate, or make laws

• Administer, or execute laws

• Adjudicate, or interpret laws

• Who had these powers under the English system?

• Who had these powers under the Articles of Confederation?


Constitutional Crafting• Delegates to the convention

represented varying ideals, values, goals and interests

• The process of crafting the Constitution was a series of compromises between varying interests

• Virginia Plan vs. New Jersey Plan

• Recognition that the document wasn’t perfect, but still served founders’ democratic ideals


Separation of Powers

• “Government should be set up so that no man need be afraid of another” —Baron de Montesquieu

• Cannot have single person or body exercising all three powers of government in case of corruption

• In practice, total separation is not possible, however; this principle is key to the US Constitution


Checks and Balances

• Allows each of the branches to police the others—checking abuses and balancing powers

• What are some examples of checks and balances built into the Constitution?

• Results in a totally new system of government in which no branch can act independently, yet none is wholly dependent either


Issue: Sovereignty

• Under Articles of Confederation, states held the ultimate legal and political authority

• Many delegates only wanted minor revisions to the Articles to preserve state sovereignty

• New Jersey Plan

• Why were states’ rights so important to early Americans?


Compromise: Federalism• Under federalism, the people are sovereign and

their contract with the government is the Constitution

• The Constitution grants a national government its own source of power while also reserving some powers solely for the states

• Federalism also serves as an additional vertical check and balance on governmental power

• Federalists vs. Anti-federalists


Legislative Branch

• Role in government is to legislate or create laws

• Even with checks and balances, Madison’s notes show that most delegates intended for the legislative branch to be the most powerful

• Why?


Issue: State Representation

• Delegates from small states wanted 1 state, 1 vote

• New Jersey Plan

• Delegates from large states wanted the representation to be proportional to population

• Example pg. 52


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Compromise:Bicameralism• Two houses of legislative branch (Congress)

• House of Representatives

• Determined by state population giving large states greater representation

• Senate

• Each state allotted only two, giving small states greater representation

• Key: Most legislation requires approval of both houses so large & small states have to work together—check/balance


Issue: Counting Population

• Need to determine population in order to allot House of Representatives seats

• African Americans accounted for nearly 1/4 of population

• Southern states want to count slaves in the population, but have no intention of letting them vote

• Why did they want to count slaves?

• Northern states had far fewer slaves and argued they should only count if they got to vote


Compromise: 3/5ths

• Although Constitutional language is vague, it essentially meant that non- free persons would count as three-fifths of a person—or 3 out of 5 would be counted

• Delegates did not tackle issue of slavery head-on

• Why not?


Issue: Congressional Election

• Direct democracy is not possible; delegates forming a republic, a representative democracy

• Direct Election: Congress should be most powerful branch and closest to the people to reflect their diversity

• Leads to more accountability and greater confidence

• Other method of selection e.g. state legislatures

• Voters have inadequate information, can be duped

• Direct election not practical


Compromise: Bicameralism

• House of Representatives directly elected by the people

• Greater numbers = more diversity

• Shorter terms (2 years) = more accountability

• Senate to be selected by State Legislatures

• More deliberative, non-reactive

• Nod to states’ rights


Executive Branch• Role is to execute and administer the laws

• Delegates fearful of a strong executive

• Don’t want to create a monarch or dictator

• Some delegates wanted multiple executive-power spread out

• New Jersey Plan

• Others want a single executive-more efficient

• Virginia Plan

• Issues over how best to limit president’s power


Issue: Limit Executive Power• Delegates settled on a single executive but built in checks

on his power

• Madison: “Confine and define” executive power

• Completely new position: republican executive

• Compromise: Limit power with 4-year terms

• Compromise: Advice and consent of Senate in appointments

• Compromise: No power to declare war

• Compromise: Add vice president in case of emergencies


Issue: Presidential Selection

• Some delegates advocating for direct election

• Accountability, more democratic

• Other delegates support alternative methods of selection

• State Legislatures

• Congress (parliamentary-type system)

• States divided into voting districts, select electors

• Why not direct election?


Compromise: Electoral College

• Each state alloted number of electors equal to the number of Congressional seats

• Ex. Ohio: 11.4 million people = 20 EVs Ex. Idaho: 1.3 million people = 4 EVs

• States determine how electors function

• Winner take all, electors legally bound

• Winner take all, electors not legally bound

• EVs split proportionally or otherwise


Issue: Presidential Veto• Veto is president’s power to

override Congress

• Some want absolute veto

• Some want Council of Revision

• Some want no veto power

Compromise: Limited veto; Congress can overturn with 2/3 vote—more checks/balances


Judicial Branch

• Role is to interpret laws and judge whether they have been broken

• Constitution is brief and vague

• Establishes Supreme Court and leaves inferior courts up to Congress

• Later case law allows for judicial review


Issue: National Judiciary

• New Jersey Plan called for no national court system, but a continuation of the state courts as under Articles of Confederation

• Virginia Plan calls for a national judiciary only

• Compromise: Federalism

• Federal judiciary establishes a national court system while still allowing for state and local courts


Issue: Judicial Appointment

• Some delegates argued that the president should be responsible for selecting judges

• He would be held to greater accountability for bad choices

• Others thought judges ought to be selected by Congress

• Too much power to give to a single executive

• Compromise: President selects judges, must be voted upon by the Senate


Issue: Amendments• Some delegates wary of Constitution because provisions

in Bill of Rights were not included

• Others argue Bill of Rights not necessary, even harmful

• Compromise: Provisions for amending the Constitution

• Proposed by 2/3 vote of Congress or a national convention called at the request of 2/3 of state legislatures

• Approved by 3/4 of state legislatures or ratifying conventions of 3/4 of states


Federalists & Anti-federalists

• Effort to make the Constitution as broadly appealing as possible

• Federalists want to account for human propensity for selfishness and corruption; need for larger government

• Anti-federalists want smaller government that will be more accountable and less corruptible

• Series of essays written by both sides arguing the merits and faults of the Constitutional system


Ratification• Needed 9 states (3/4) to ratify the Constitution

• Delaware, New Jersey, Georgia vote for unanimously

• Connecticut, Pennsylvania, Maryland, South Carolina strongly support

• Massachusetts, Virginia, New Hampshire, New York ratify narrowly

• North Carolina fails to ratify; later ratifies

• Rhode Island refused to call a convention; later ratifies


Constitutional Foundations: Instutionas and Compromises 2009

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