Constitutional Government Chapter 1 Prepared by Teresa Nevárez, El Paso Community College © 2008 Pearson Education, Inc.

Constitutional Government

Chapter 1

Prepared by Teresa Nevárez, El Paso Community College© 2008 Pearson Education, Inc.

Constitutional Democracy:John Locke

Background: Locke was widely read by American colonists and his ideas influenced many writings of the 18th century, mainly the Declaration of Independence

Second Treatise, of Civil Govt. (J. Locke)

• Perfect freedom is the state of nature for men

• In the natural state equality exists– Equality of advantages– No subordination

• The Law of Nature– Men are rational beings– No liberty to destroy himself– No liberty to destroy others– Being equal, no right to harm another’s

life, health, liberty, or possessions– Must preserve himself– Only in the name of justice can one take

or impair the life of others

Second Treatise, of Civil Govt. (J. Locke)

• In the Law of Nature– The law of nature is in the hands of every

man– Punishment must be comparable to the

crime committed• Why leave the state of nature to join

a society?– Life is unsafe, insecure, and dangerous– Irregular exercise of power– Greatest end is to preserve property

• To join a society:– Build laws based on common consent of

right and wrong– Neutral judges to impart the established

laws

Second Treatise, of Civil Govt. (J. Locke)

• Government must:– Be based on the promulgation of

established laws and apply them equally to everyone

– Have as its end, the good of the people– Not raise taxes without the consent of

the people/their representatives– Legislature cannot transfer the power to

make laws to anybody else

• People can dissolve a government:– If unauthorized people are creating laws– If force is used without a right

Framing the Constitution: Elitist or Democratic Process:

John P. Roche

The Founding Fathers: A Reform Caucus in Action

• The Founding Fathers were superb democratic politicians

• They were political men working within a democratic framework

• The Philadelphia Convention was a nationalist reform caucus– It endorsed a stronger centralized

government• Their work was done within the limits

of consensus

The Founding Fathers: A Reform Caucus in Action (J. Roche)

• The Constitution is a practical political document

• Constitutionalists had tremendous influence over public opinion

• The project would have failed without the support of New York

• Georgians supported a stronger central government that would provide military protection for them

• New Jersey and Connecticut wanted to free themselves from the economic control of New York

• Virginia wanted more power in the new political system

The Founding Fathers: A Reform Caucus in Action (J. Roche)

• Some supported the Constitution simply because the wrong people were against it

• Others supported the Constitution so the U.S. could assume its rightful place in the international arena

• Delegates had structural differences, not ideological

• Assets of Constitutionalists:– Energy and talent of its leaders, such as

George Washington, John Adams, and Thomas Jefferson

– Acting fast by keeping opposition always on the defensive

The Founding Fathers: A Reform Caucus in Action (J. Roche)

• Agreement to secrecy• Virginia Plan

– Drafted by James Madison– Proposed to make amendments with

approval of 9 states– Promoted a unitary national government– Lower House of Congress to be elected by

people with membership based on population

– Upper House of Congress to be chosen by the Lower

– Both chambers would elect the executive– Both chambers would elect the judges– Congress had control over military– Under this plan Massachusetts, Virginia,

and Pennsylvania would dominate

The Founding Fathers: A Reform Caucus in Action (J. Roche)

• New Jersey Plan– Affirmed that the constituents of central

government were the states, not the people– Concentrated efforts on weaknesses of the

Virginia Plan– Favored a strong central government but

not one that privileged the big states

• Connecticut Compromise– Supported equal representation in the

second chamber

• Electing an Executive– Proposals

• Elected by the people• Elected by state governors• Elected by electors chosen by state

legislatures

The Founding Fathers: A Reform Caucus in Action (J. Roche)– Elected by an Electoral College chosen by a

lot from Congress

• Decision on the executive– Chosen by an Electoral College– State legislatures would chose the method

of selection of electors– Small states were guaranteed a minimum of

3 votes– Big states would have proportional power– Citizens could be involved in the choice of

electors– The House would decide in the event no

presidential candidate received a majority– The Electoral College was to be temporary

The Founding Fathers: A Reform Caucus in Action (J. Roche)

• 3/5 Compromise– Morality of slavery was not an issue– The issue of slavery was one of taxation,

commerce, and representation– Some states supported the 3/5 compromise

in exchange for support on navigation and commercial laws

• Within 8 months, 8 states had ratified the new Constitution

Framing the Constitution: Elitist or Democratic Process:

Charles A. Beard

Framing the Constitution• Laws are to be understood by the

circumstances of their enactment• Two parties in existence during the

adoption of Constitution– One emphasized strengths and efficiency

in government – The other highlighted its popular aspects

• The men involved in the construction of the Constitution were bold and radical thinkers

Framing the Constitution (C. Beard)– Pushed for doctrine of individual rights– Supported the idea of a small government

• Government was a necessary evil to be diligently supervised all the time

– Supported the idea that man was a rational being with an innate sense of justice

• Issues at stake:– Maintenance of social order– Payment of public debt– Creation of a sound financial system– Development of new economic resources

• Problems:– Holders of securities of the Confederacy did

not receive interest on their loans– Frontier lands were insecure

Framing the Constitution (C. Beard)– The currency of the states hopelessly confusing– Depreciated paper money– Articles of Confederation were inadequate

• Annapolis Convention: few showed up but gave opportunity to call for Philadelphia Convention

• Philadelphia Convention– Delegates were chosen by state legislatures or by

governors• They were all men of political experience and

practical knowledge• They were ex-governors, Congressmen,

military men, public administrators, lawyers, etc.

• They represented the solid, conservative, commercial, and financial interests of the country

Framing the Constitution (C. Beard)

• Purpose of Convention– To establish a stronger government that

would• Pay the national debt• Regulate interstate and foreign commerce• Provide for national defense• Prevent fluctuations in the currency• Control propensities of legislative

majorities to attack private rights• Provide stability and efficiency• Secure private right against majority

factions• Popular governments were considered

in slight regard• Delegates were not particularly

interested in attaining a democracy or equality

Federalist 47, 48, 51

Background: Our political system is best described as a constitutional democracy: a government that is regulated by laws that limit its exercise of power. The separation of powers was designed so no given group would gain control of the national apparatus.

Federalist 47: James Madison

• The idea of separation of powers is to prevent any of the parts of government from becoming disproportionably powerful

• Montesquieu stated that there could be no liberty where the legislative and executive powers are placed in the same person or body

• The constitution of Massachusetts stipulates that the legislative, executive, and judicial branches should never exercise the powers of the others

Federalist 48: James Madison

• The different branches should be connected in a way that each should have constitutional control over the others

• Powers of one branch should not be administered by either of the other departments

• A mechanism should be established that would provide a practical security for each against invasion by the others

• The legislature has direct access to the people, giving it a greater facility to dominate the other two branches

Federalist 51: James Madison

• Divide government into separate and distinct branches that will keep each other in their proper place

• Each branch checking on the other• The legislative branch has a

tendency to dominate; thus, it should be divided into separate Houses

• Each department should be as little dependent as possible on the others

• Enable government to control the governed

• Enable government to control itself

Interpreting the Constitution

Background: The framers of the Constitution created a flexible document for future generations to apply. It is a bare-bones document that has been in place for over 200 years. The on-going debate is over how it should be interpreted : strictly or loosely.

How Not to Read the Constitution: Tribe & Dorf• The Constitution was perceived as a

document that sought a balance between governmental power and individual liberty

• The Bill of Rights serves as an auxiliary precaution against tyranny

• Not even the most conservative justices believe in a jurisprudence of original intent

• Conservatives no less than liberals go beyond a fixed meaning of the Constitution

• We must reject the idea of an infinitely malleable Constitution