The Institutionalization of Power Poli 110J 2.2 We, the People.

The Institutionalization of PowerPoli 110J 2.2

We, the People

Course Website

• adamgomez.wordpress.com– All class documents, electronic readings are here

Federalist Papers

• People are fundamentally bad• Anarchy is the most pressing threat• The United States is a single nation of people

Anti-Federalist Papers

• People are fundamentally good• The most pressing danger is despotism• The United States is a union of sovereign

republics

Federalist Papers

• The problem with factions• Fed. #10– Republics are prone to factionalization– Factions: groups within the republic united by

interest or passion– "There are two methods of curing the mischiefs of

faction: the one, by removing its causes; the other, by controlling its effects”• But: “The latent causes of faction are thus sown in the

nature of man”

Federalist Papers

• The problem with factions• Fed #10: “The inference to which we are

brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.”

Federalist Papers

• The problem with factions• Fed #10 “If a faction consists of less than a

majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.”

Federalist Papers

• The problem with factions• Fed #10: “When a majority is included in a

faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”

Federalist Papers

• Solution:• Separation of powers– Legislature– Executive– Judiciary

• Checks & balances– By setting factions & branches of gov’t against

each other, none will be able to dominate• Protection of minority groups

Federalist Papers

• Solutions• Fed #51: Division of power "where the

constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."

Federalist Papers

• Solutions• Fed #51: “Ambition must be made to counteract

ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”

Anti-Federalist Response

• Plans of Publius are:• Impractical: local identity > national identity,

central government can’t control periphery (AF #14)

• Aristocratic/oligarchic: designed to take power for the few & exclude the many (AF #51)

• Imperial: Central gov’t will use standing armies primarily for internal suppression of local rebellion (AF #51)

Federalist• The Executive:

– 4 year terms (Fed #69)– No legislative power but veto (Fed #69)– Commander-in-chief of armed forces (Fed #69)

• But can’t declare, raise or regulate armed forces– Under the law (Fed #69)– Lacks ability to create noble titles, other powers of kings (Fed

#69)– Strong executive makes for strong gov’t (Fed #69)– Single executive makes it easier to affix responsibility (Fed #69)

• Notice how concerned Hamilton is with demonstrating that the Executive is not a king

Anti-Federalist Response

• Anti-Federalist #70• You’re just electing a king!– Kingship should at least be hereditary• Else there will be civil wars, and presidents will stage

coups so that they don’t have to leave power

Federalist

• Legislature (Fed. 39)• “the sources from which the ordinary powers

of government are to be derived:”

Federalist

• Legislature (Fed. #39)• “The House of Representatives will derive its

powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal.”

Federalist

• Legislature (Fed. #39)• “The Senate, on the other hand, will derive its

powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL”

Federalist

• Legislature (Fed. #39)• “The difference between a federal and national

government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL”

Anti-Federalist

• AF #51• Senate aristocratic, excludes the voice of the

people. Expect power of House of Representatives to be undermined

Federalist• Judiciary (Fed. #78)– Lifetime appointment to retain independence– Power of judicial review– “A constitution is, in fact, and must be regarded by the

judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

Anti-Federalist• AF #78-79• Essentially, the complaint is that the

constitutional position of judges is anti-democratic– there is no power above them that can control their

decisions, or correct their errors. – There is no authority that can remove them from

office for any errors or want of capacity, or lower their salaries

– in many cases their power is superior to that of the legislature.

Constitution of the United States of America

• 1787– Congress of the Confederation votes to begin plan

to revise/replace Articles of Confederation– Invite states to send delegates to Philadelphia

Convention (only RI refuses)– Contrary to Articles of Confederation, Art. VII says

that only 9 participating states need ratify the new Constitution for it to go into effect

– Adopted September 17, 1787

Constitution of the United States of America

• What does it mean to “constitute”?• “We the People of the United States, in Order

to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Constitution of the United States of America

• Legislature (Article I)– Broad powers over declaration of war, commerce

(foreign & interstate), law, currency, punishment, etc.

Constitution of the United States of America

• House of Representatives• “Representatives and direct Taxes shall be

apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”– Changed by 13th & 14th amendment

Constitution of the United States of America

• Senate• The Senate of the United States shall be

composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote– changed by 17th amendment to direct election

• Compromise between small and large states

Constitution of the United States of America

• Executive– Commander-in-chief of armed forces– Appoint to offices– Grant pardons– Sees that laws are faithfully executed– Veto• Can be overridden by 2/3 majority of legislature

Constitution of the United States of America

• Judiciary• Congress creates lower courts, but there must

be a Supreme Court• Lifetime appointment• Constitutional review– Constitution is “the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (Art. 6)

Constitution of the United States of America

• No amendment may affect slavery until 1808– Compromise to maintain unity

Bill of Rights

• Hamilton against, Jefferson in favor• Madison proposes Bill of Rights during

ratification process for Constitution 1789, ratified 1791– A compromise to keep the Constitution from

being derailed

Bill of Rights

• The case against: Hamilton in Fed. #84• “in strictness, the people surrender nothing; and

as they retain every thing they have no need of particular reservations.”

• “bills of rights… are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”

Bill of Rights• The case for: Brutus in AF #84:• “The most important article in any Constitution may

therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.”

• “So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.”

Bill of Rights

• Individualistic• Restrictive of the powers of government– Negative liberty

Bill of Rights

• 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Bill of Rights

• 2. A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

Bill of Rights

• 3 & 4: Security of property from the state– Protection from the quartering soldiers– Protection from unreasonable search & seizure

Bill of Rights

• 5-8 Governing arrest, trial, and punishment of crimes

Bill of Rights

• 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• 10: 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.

Coming Up

• Fri: Winthrop, Calhoun, Webster• Mon: MLK holiday• Wed: O’Sullivan