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PART II CONSTITUTION
3 The Constitution Limiting Governmental Power
4 Federalism: Dividing Governmental Power
3 The Constitution Limiting Governmental Power
Listen to Chapter 3 on MyPoliSciLab
In 1789, Thomas Jefferson argued that a permanent and perpetual Constitution was
impossible because “the earth belongs always to the living generation. They may
manage it then, and what proceeds from it, as they please.” Therefore, Jefferson
argued that a new constitution be written roughly every nineteen years to reflect
the will of the present.
James Madison’s Constitution does not expire every nineteen years, but it does
allow for amending. In 1978, Texas undergrad Gregory Watson discovered the text
of a forgotten amendment that had been drafted as one of the original Bill of
Rights, but only approved by eight states. Watson made it his goal to see the bill
ratified, and in 1992, it was approved as the twenty-seventh amendment that states
congressional pay raises do not take effect until after the Congress approving the
raise completes its term. Speaker Tom Foley initially challenged the legality of the
amendment because it was so old, but the Supreme Court ruled in 1939 that
amendments without expiration dates were still eligible for ratification, and that
amendments, as political questions, did not belong in the courts.
Four more proposed amendments await ratification: one from 1789 would change
congressional apportionment to allow one member of the House for every 50,000
state residents; another from 1810 would revoke the citizenship of any American
accepting a foreign title; a third known as the Corwin Amendment from 1861
would have made it unconstitutional to abolish slavery (made irrelevant by the
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13th Amendment); and a 1924 Child Labor Amendment which would explicitly
allow Congress to regulate child labor in the states.
All of these amendments are political, and represent efforts to alter a perpetual
document to serve the needs of the political present.
3.1 Identify the major principles of constitutionalism and trace its evolution in
the United States, p. 69
3.2 Assess the obstacles to nationhood, p. 71
3.3 Outline the principles on which the Founders were in agreement and
characterize their areas of conflict, p. 74
3.4 Analyze the economic and security issues that the Founders faced and the
solutions they reached, p. 78
3.5 Explain how the Constitution structured the new government, p. 82
3.6 Analyze the separation of powers and the checks and balances established by
the Constitution, p. 86
3.7 Outline the arguments made for and against ratification of the Constitution,
p. 88
3.8 Assess the protections provided by the Bill of Rights and determine the
various means through which the Constitution may be changed, p. 92
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The American Constitution is the highest law of the land. It is also one of the dominant
symbols of the American national identity.
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MyPoliSciLab Video Series
Watch on MyPoliSciLab
1
The Big Picture If you are going to read any chapter of this book, this is the
one you must read to understand everything else. Learn about the different
parts of the Constitution from author Ronald Keith Gaddie, including how the
government works, what rights it protects, and what the mechanisms are for
change.
2
The Basics What is the purpose of a Constitution? In this video, you will
discover the reasons why the framers wrote the Constitution and how the
Constitution sets up checks and balances, the protection of liberties, and the
framework we need for a functioning democracy.
3
In Context Why is it unusual that the United States Constitution has governed
so long in its present form? Fordham University political scientist Costas
Panagopolos explains why the Constitution is such a rarity and how it has
succeeded in an evolving American society.
4
Think Like a Political Scientist How do the institutions created by the U.S.
Constitution operate and how has their role changed over time? Fordham
University political scientist Costas Panagopolos examines this and other
emerging issues in the research and in the study of the Constitution.
5
In the Real World How well does the system of checks and balances in the
United States work, and is it actually fair? Real people voice their opinions on
whether or not they believe it is constitutional for Congress to check the power
of the president—and vice versa.
6
So What? In the past 227 years, the Constitution has only been changed 27
times. Is this indicative of a flaw or strength of this founding document?
Author Ronald Keith Gaddie considers this question and explains why a
second constitutional convention is unnecessary.
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Constitutional Government in America
3.1 Identify the major principles of constitutionalism and trace its evolution in
the United States.
Constitutions govern government. Constitutionalism—a government of laws, not
of people—means that those who exercise governmental power are restricted in
their use of it by a higher law. If individual freedoms are to be placed beyond the
reach of government and beyond the reach of majorities, then a constitution must
truly limit the exercise of authority by government. It does so by setting forth
individual liberties that the government—even with majority support—cannot
violate.
constitutionalism
A government of laws, not people, operating on the principle that governmental
power must be limited and government officials should be restrained in their
exercise of power over individuals.
A constitution legally establishes government authority. It sets up governmental
bodies (such as the House of Representatives, the Senate, the presidency, and the
Supreme Court in the United States). It grants them powers. It determines how
their members are to be chosen. And it prescribes the rules by which they make
decisions.
constitution
The legal structure of a political system, establishing governmental bodies,
granting their powers, determining how their members are selected, and
prescribing the rules by which they make their decisions. Considered basic or
fundamental, a constitution cannot be changed by ordinary acts of governmental
bodies.
Constitutional decision making is deciding how to decide; that is, it is deciding on
the rules for policy making. It is not policy making itself. Policies will be decided
later, according to the rules set forth in the constitution.
A constitution cannot be changed by the ordinary acts of governmental bodies;
change can come only through a process of general popular consent.1 The U.S.
Constitution, then, is superior to ordinary laws of Congress, orders of the president,
decisions of the courts, acts of the state legislatures, and regulations of the
bureaucracies. Indeed, the Constitution is “the supreme law of the land.”
Americans are strongly committed to the idea of a written constitution to establish
government and limit its powers. In fact, the Constitutional Convention of 1787 had
many important antecedents.
The Magna Carta, 1215
English lords, traditionally required to finance the king’s wars, forced King John to
sign the Magna Carta, a document guaranteeing their feudal rights and setting the
precedent of a limited government and monarchy.
The Mayflower Compact, 1620
Pilgrim colonists, while still aboard the Mayflower, signed a compact, among
themselves and other passengers, establishing a “civil body politic . . . to enact just
and equal laws . . . for the general good of the colony, unto which we promise all
due submission and obedience.” After the Pilgrims landed at Plymouth, in what is
today Massachusetts, they formed a colony based on the Mayflower Compact, thus
setting a precedent of a government established by contract among the governed.
Mayflower Compact
Agreement among Pilgrim colonists to establish a government, setting the
precedent of government by contract among the governed.
The Colonial Charters, 1624–1732
The colonial charters that authorized settlement of the colonies in America were
granted by royal action. For some of the colonies, the British king granted official
proprietary rights to an individual, as in Maryland (granted to Lord Baltimore),
Pennsylvania (to William Penn), and Delaware (also to Penn). For other colonies,
the king granted royal commissions to companies to establish governments, as in
Virginia, Massachusetts, New Hampshire, New York, New Jersey, Georgia, and
North and South Carolina. Royal charters were granted directly to the colonists
themselves only in Connecticut and Rhode Island. These colonists drew up their
charters and presented them to the king, setting a precedent in America for written
contracts defining governmental power.
colonial charters
Documents granted by the English Monarch to individuals, companies, and groups
of settlers in the new American colonies, authorizing a degree of self-government,
setting the precedent of written contracts defining governmental power.
The “Charter Oak Affair” of 1685–88 began when King James II became displeased
with his Connecticut subjects and issued an order for the repeal of the Connecticut
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Charter. In 1687 Sir Edmund Andros went to Hartford, dissolved the colonial
government, and demanded that the charter be returned. But Captain John
Wadsworth hid it in an oak tree. After the so-called Glorious Revolution in England
in 1688, the charter was taken out and used again as the fundamental law of the
colony. Subsequent British monarchs silently acquiesced in this restoration of
rights, and the affair strengthened the notion of loyalty to the constitution rather
than to the king.
The Declaration of Independence, 1776
The First Continental Congress, a convention of delegates from 12 of the 13 original
colonies, came together in 1774 to protest British interference in American affairs.
But the Revolutionary War did not begin until April 19, 1775. The evening before,
British regular troops marched out from Boston to seize arms stored by citizens in
Lexington and Concord, Massachusetts. At dawn the next morning, the
Minutemen—armed citizens organized for the protection of their towns—engaged
the British regulars in brief battles, then harassed them all the way back to Boston.
In June of that year, the Second Continental Congress appointed George
Washington commander in chief of American forces and sent him to Boston to take
command of the American militia surrounding the city. Still, popular support for
the Revolution remained limited, and even many members of the Continental
Congress hoped only to force the king and his government to make changes—not to
split off from Britain.
As this hope died, however, members of the Continental Congress came to view a
formal Declaration of Independence as necessary to give legitimacy to their cause
and establish the basis for a new nation. Accordingly, on July 2, 1776, the
Continental Congress “Resolved, that these United Colonies are, and, of right, ought
to be free and independent States.” Thomas Jefferson had been commissioned to
write a justification for the action, which he presented to the Congress on July 4,
1776. In writing the Declaration of Independence, Jefferson lifted several phrases
directly from the English political philosopher John Locke asserting the rights of
individuals, the contract theory of government, and the right of revolution. The
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declaration was signed first by the president of the Continental Congress, John
Hancock.
Declaration of Independence
The resolution adopted by the Second Continental Congress on July 4, 1776, that
the American colonies are to be “free and Independent states.” Drafted by Thomas
Jefferson, it asserts natural law, inalienable rights, government by contract, and
the right of revolution. John Hancock is said to have signed first in large letters so
King George III could read it without his glasses.
The Revolutionary War effectively ended when British General Charles Cornwallis
surrendered at Yorktown, Virginia, in October 1781. But even as the war was being
waged, the new nation was creating the framework of its government.
Thomas Jefferson and the Declaration of
Independence
Thomas Jefferson’s opening words of the Declaration of Independence provide the
most succinct summary of the role of government in a free society:
We hold these truths to be self evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness. That to secure these rights
Governments are instituted among Men, deriving their just powers from the
consent of the governed. That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or abolish it, and
to institute new Government. . . .
In this single paragraph, Jefferson asserts natural law and the natural rights
derived from it, the social contract as the origin of government, government by the
consent of the governed, and the right of revolution.
Jefferson was born into wealth and privilege in Virginia in 1743. He mastered
Latin, Greek, and French and at age 14 inherited 5,000 acres of land and dozens of
slaves on the plantation that eventually became known as Monticello. He
graduated in two years from the College of William and Mary in Williamsburg with
highest honors. He practiced law and served in the Virginia House of Burgesses and
was sent by Virginia to the Continental Congress. There he was delegated the task
of writing the Declaration of Independence, which was formally adopted July 4,
1776. He later served as governor of Virginia and as the American Minister to
France, America’s most important ally at the time. He did not attend the
Constitutional Convention
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and gave only lukewarm support to the new Constitution, believing that it was
flawed for lack of a Bill of Rights. After returning from France, he served as the
nation’s first secretary of state under President George Washington.
Jefferson can be credited with founding the American party system. In
Washington’s cabinet, he argued against the policies of Secretary of the Treasury
Alexander Hamilton—policies that would strengthen the role of the federal
government in business, banking, and commerce. He resigned from the cabinet
and became the principal spokesperson for the emerging Anti-Federalists. He lost
the presidency in 1796 to the Federalist candidate John Adams, but won enough
electoral votes to become vice president. Prior to the election of 1800, Jefferson
worked closely with Aaron Burr of New York to organize the DemocraticRepublican party that would eventually become the Democratic Party. When all his
party’s electors cast their two votes for Jefferson and Burr, intending that Jefferson
should be president and Burr vice president, the two men actually tied for the
presidency. The Federalist-controlled House, after 36 ballots, and on the advice of
Alexander Hamilton, finally elected Jefferson as president and Burr as vice
president. Later Burr would kill Hamilton in a duel.
Jefferson’s presidency was highlighted by the Louisiana Purchase, which doubled
the size of the United States. He hoped that this purchase would provide the
American people with farmland “to the hundredth and thousandth generation.”
When he spoke warmly of the wisdom of “the people,” he was actually referring to
those who owned and managed their own farms and estates. He believed that only
those who owned land could make good citizens. He disliked aristocracy, but he
also held the urban masses in contempt. He wanted to see the United States become
a nation of free, educated, land-owning farmers. After leaving the presidency,
Jefferson plunged into the planning and designing of the University of Virginia. His
dream was realized with the opening of the university in 1825.
President John F. Kennedy welcomed 49 Nobel Prize winners to the White House in
1962, with his now famous tribute to Jefferson: “I think this is the most
extraordinary collection of talent and of human knowledge that has ever been
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gathered together at the White House—with the possible exception of when
Thomas Jefferson dined alone.”
The Articles of Confederation, 1781–1789
Although Richard Henry Lee, a Virginia delegate to the Continental Congress, first
proposed that the newly independent states form a confederation on July 6, 1776,
the Continental Congress did not approve the Articles of Confederation until
November 15, 1777, and the last state to sign them, Maryland, did not do so until
March 1, 1781. Under the Articles, Congress was a single house in which each state
had two to seven members but only one vote. Congress itself created and appointed
executives, judges, and military officers. It also had the power to make war and
peace, conduct foreign affairs, and borrow and print money. But Congress could
not collect taxes or enforce laws directly; it had to rely on the states to provide
money and enforce its laws. The United States under the Articles was really a
confederation of nations. Within this “firm league of friendship” (Article III of the
Articles of Confederation), the national government was thought of as an alliance
of independent states, not as a government “of the people.”
Articles of Confederation
The original framework for the government of the United States, adopted in 1781
and superseded by the U.S. Constitution in 1789. It established a “firm league of
friendship” among the states, rather than a government “of the people.”
Troubles Confronting a New Nation
3.2 Assess the obstacles to nationhood.
Over two centuries ago, the United States was struggling to achieve nationhood.
The new U.S. government achieved enormous successes under the Articles of
Confederation: it won independence from Great Britain, the world’s most powerful
colonial nation at the time; it defeated vastly
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superior forces in a prolonged war for independence; it established a viable peace
and won powerful allies (notably, France) in the international community; it
created an effective army and navy, established a postal system, and laid the
foundations for national unity. But despite these successes in war and diplomacy,
the political arrangements under the Articles were unsatisfactory to many
influential groups—notably, bankers and investors who held U.S. government
bonds, plantation owners, real estate developers, and merchants and shippers.
Financial Difficulties
Under the Articles of Confederation, Congress had no power to tax the people
directly. Instead, Congress had to ask the states for money to pay its expenses,
particularly the expenses of fighting the long and costly War of Independence with
Great Britain. There was no way to force the states to make their payments to the
national government. In fact, about 90 percent of the funds requisitioned by
Congress from the states were never paid, so Congress had to borrow money from
wealthy patriot investors to fight the war. Without the power to tax, however,
Congress could not pay off these debts. Indeed, the value of U.S. governmental
bonds fell to about 10 cents for every dollar’s worth because few people believed
the bonds would ever be paid off. Congress even stopped making interest payments
on these bonds.
Commercial Obstacles
Under the Articles of Confederation, states were free to tax the goods of other
states. Without the power to regulate interstate commerce, the national
government was unable to protect merchants from heavy tariffs imposed on
shipments from state to state. Southern planters could not ship their agricultural
products to northern cities without paying state-imposed tariffs, and northern
merchants could not ship manufactured products from state to state without
interference. Merchants, manufacturers, shippers, and planters all wanted to
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develop national markets and prevent the states from imposing tariffs or
restrictions on interstate trade.
Currency Problems
Under the Articles, the states themselves had the power to issue their own
currency, regulate its value, and require that it be accepted in payment of debts.
States had their own “legal tender” laws, which required creditors to accept state
money if “tendered” in payment of debt. As a result, many forms of money were
circulating: Virginia dollars, Rhode Island dollars, Pennsylvania dollars, and so on.
Some states (Rhode Island, for example) printed a great deal of money, creating
inflation in their currency and alienating banks and investors whose loans were
being paid off in this cheap currency. If creditors refused payment in a particular
state’s currency, the debt could be abolished in that state. So finances throughout
the states were very unstable, and banks and creditors were threatened by cheap
paper money.
Western Lands
Men of property in early America actively speculated in western land. But the
Confederation’s military weakness along its frontiers kept the value of western
lands low. A strong central government with enough military power to oust the
British from the Northwest and to protect western settlers against Indian attacks
could open the way for the development of the American West. The protection and
settlement of western land would cause land values to skyrocket and make land
speculators rich. Moreover, under the Articles of Confederation each state lay claim
to western lands. Indeed, Maryland’s ratification of the Articles was withheld until
the states with claims to lands west of the Appalachians were ceded to Congress in
1781 for “the good of the whole.”
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Civil Disorder
In several states, debtors openly revolted against tax collectors and sheriffs
attempting to repossess farms on behalf of creditors who held unpaid mortgages.
The most serious rebellion broke out in the summer of 1786 in western
Massachusetts, where a band of 2,000 insurgent farmers captured the courthouses
in several counties and briefly held the city of Springfield. Led by Daniel Shays, a
veteran of the Revolutionary War battle at Bunker Hill, the insurgent army posed a
direct threat to investors, bankers, creditors, and tax collectors by burning deeds,
mortgages, and tax records to wipe out proof of the farmers’ debts. Shays’s
Rebellion, as it was called, was finally put down by a small mercenary army, paid
for by well-to-do citizens of Boston.
Reports of Shays’s Rebellion filled the newspapers of the large eastern cities.
George Washington, Alexander Hamilton, James Madison, and many other
prominent Americans wrote their friends about it. The event galvanized property
owners to support the creation of a strong central government capable of dealing
with “radicalism.” Only a strong central government, they wrote one another,
could “insure domestic tranquility,” guarantee “a republican form of government,”
and protect property “against domestic violence.” It is no accident that all of these
phrases appear in the Constitution of 1787.
Shays’s Rebellion
An armed revolt in 1786, led by a Revolutionary War Officer Daniel Shays,
protesting the discontent of small farmers over debts and taxes, and raising
concerns about the ability of the U.S. government under the Articles of
Confederation to maintain internal order.
The Road to the Constitutional Convention
In the spring of 1785, some wealthy merchants from Virginia and Maryland met at
Alexandria, Virginia, to try to resolve a conflict between the two states over
commerce and navigation on the Potomac River and Chesapeake Bay. George
Washington, the new nation’s most prominent citizen, took a personal interest in
the meeting. As a wealthy plantation owner and a land speculator who owned
more than 30,000 acres of land upstream on the Potomac, Washington was keenly
interested in commercial problems under the Articles of Confederation. He lent his
great prestige to the Alexandria meeting by inviting the participants to his house at
Mount Vernon. Out of this conference came the idea for a general economic
conference for all of the states, to be held in Annapolis, Maryland, in September
1786.
The Annapolis Convention turned out to be a key stepping-stone to the
Constitutional Convention of 1787. Instead of concentrating on commerce and
navigation between the states, the delegates at Annapolis, including Alexander
Hamilton and James Madison, called for a general constitutional convention to
suggest remedies to what they saw as defects in the Articles of Confederation.
Annapolis Convention
A 1786 meeting at Annapolis, Maryland, to discuss interstate commerce, which
recommended a larger convention—the Constitutional Convention of 1787.
On February 21, 1787, the Congress called for a convention to meet in Philadelphia
for the “sole and express purpose” of revising the Articles of Confederation and
reporting to the Congress and the state legislatures “such alterations and provisions
therein as shall, when agreed to in Congress and confirmed by the states, render
the federal Constitution adequate to the exigencies of government and the
preservation of the union.” Notice that Congress did not authorize the convention
to write a new constitution or to call constitutional conventions in the states to
ratify a new constitution. State legislatures sent delegates to Philadelphia expecting
that their task would be limited to revising the Articles and that revisions would be
sent back to Congress and state legislatures for their approval. But that is not what
happened.
The Nation’s Founders
The 55 delegates to the Constitutional Convention, which met in Philadelphia in the
summer of 1787, quickly discarded the congressional mandate to merely “revise”
the Articles of Confederation. The Virginia delegation, led by James Madison,
arrived before a quorum of seven states had assembled and used the time to draw
up an entirely new constitutional document. After the first formal session opened
on May 25 and George Washington was elected president of the convention, the
Virginia Plan became the basis of discussion. Thus, at the very beginning of the
convention, the decision was made to scrap the Articles of Confederation
altogether, write a new constitution, and form a new national government.2
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The Founders were very confident of their powers and abilities. They had been
selected by their state legislatures (only Rhode Island, dominated by small farmers,
refused to send a delegation). When Thomas Jefferson, then serving in the critical
post of ambassador to France (the nation’s military ally in the Revolutionary War),
first saw the list of delegates, he exclaimed, “It is really an assembly of demigods.”
Indeed, among the nation’s notables, only Jefferson and John Adams (then serving
as ambassador to England) were absent. The eventual success of the convention,
and the ratification of the new Constitution, resulted in part from the enormous
prestige, experience, and achievements of the delegates themselves.
Above all, the delegates at Philadelphia were cosmopolitan. They approached
political, economic, and military issues from a “continental” point of view. Unlike
most Americans in 1787, their loyalties extended beyond their states. They were
truly nationalists.3
Consensus and Conflict in Philadelphia
3.3 Outline the principles on which the Founders were in agreement and
characterize their areas of conflict.
The Founders shared many ideas about government, based on the Enlightenment.
We often focus our attention on conflict in the Convention of 1787 and the
compromises reached by the participants, but the really important story of the
Constitution is the consensus that was shared by these men of influence.
the Enlightenment
Also known as the Age of Reason, a philosophical movement in eighteenth-century
Western thought based on a belief in reason and the capacities of individuals, a
faith in a scientific approach to knowledge, and a confidence in human progress.
Natural Rights to Liberty and Property
The Founders had read John Locke and absorbed his idea that the purpose of
government is to protect individual liberty and property. They believed in a
natural law, superior to any human-made laws, that endowed each person with
certain inalienable rights—the rights to life, liberty, and property. They believed
that all people were equally entitled to these rights. Most of them, including slave
owners George Washington and Thomas Jefferson, understood that the belief in
personal liberty conflicted with the practice of slavery and found the inconsistency
troubling.
natural law
The law that would govern humans in a state of nature before governments
existed.
inalienable rights
The rights of all people derived from natural law and not bestowed by
governments, including the rights to life, liberty, and property.
Social Contract
The Founders believed that government originated in an implied contract among
people. People agreed to establish government, obey laws, and pay taxes in
exchange for protection of their natural rights. This social contract gave
government its legitimacy—a legitimacy that rested on the consent of the governed,
not with gods or kings or force. If a government violated individual liberty, it broke
the social contract and thus lost its legitimacy.
social contract
The idea the government originates from an implied contract among people who
agree to obey laws in exchange for the protection of their natural rights.
Representative Government
Although most of the world’s governments in 1787 were hereditary monarchies,
the Founders believed the people should have a voice in choosing their own
representatives in government. They opposed hereditary aristocracy and titled
nobility. Instead, they sought to forge a republic. Republicanism meant
government by representatives of the people. The Founders expected the masses to
consent to be governed by their leaders—men of principle and property with
ability, education, and a stake in the preservation of liberty. The Founders believed
the people should have only a limited role in directly selecting their
representatives: they should vote for members of the House
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of Representatives, but senators, the president, and members of the Supreme Court
should be selected by others more qualified to judge their ability.
republicanism
Government by representatives of the people rather than directly by the people
themselves.
Limited Government
The Founders believed unlimited power was corrupting and a concentration of
power was dangerous. They believed in a written constitution that limited the
scope of governmental power. They also believed in dividing power within
government by creating separate bodies able to check and balance one another’s
powers.
Nationalism
Most important, the Founders shared a belief in nationalism—a strong and
independent national (federal) government with power to govern directly, rather
than through state governments. They sought to establish a government that would
be recognized around the world as representing “We the people of the United
States.” Not everyone in America shared this enthusiasm for a strong federal
government; indeed, opposition forces, calling themselves Anti-Federalists, almost
succeeded in defeating the new Constitution. But the leaders meeting in
Philadelphia in the summer of 1787 were convinced of the need for a strong central
government that would share power with the states.
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nationalism
Belief that shared cultural, historical, linguistic, and social characteristics of a
people justify the creation of a government encompassing all of them and that the
resulting nation-state should be independent and legally equal to all other nationstates.
Conflict
Consensus on basic principles of government was essential to the success of the
Philadelphia convention. But conflict over the implementation of these principles
not only tied up the convention for an entire summer but also later threatened to
prevent the states from ratifying, or voting to approve, the document the
convention produced.
The Game, the Rules, the Players John Locke and
Edmund Burke, Enlightenment Advocates for Liberty
Locke, Guiding the Founders: The English political philosopher John Locke had a
profound influence on America’s founders. Indeed, the Declaration of
Independence may be thought of as a restatement of Locke’s basic ideas. Writing
in 1690, Locke rejected the notion of the divine right of kings to rule and asserted
the rights of human beings who are “by nature free, equal, and independent” to
establish their own government by “social contract” to gain security from an
unstable “state of nature.” In other words, people consent to be governed to
protect themselves and their property. But if the government they create becomes
arbitrary, enslaves its people, or takes away their property, then the people have
the “right of revolution” against such a government. Locke had been read by most
of the Founders, who accepted his ideas of a “social contract” as the origin of
government, and even a “right of revolution” as a last resort to a despotic
government.
Edmund Burke, Parliamentarian for American Sovereignty: Irish philosopher
and politician Edmund Burke fought for accommodation of American sovereignty
in the British Empire. Starting in 1765, he emerged as an articulate advocate for
limited American independence. In a 1774 speech following the Boston Tea Party,
Burke asserted “Do not burthen [the Americans] with taxes,” and then argued that
the loyalty of the American colonies was not to the Parliament, but to the King.
Parliament should leave alone American taxation as part of the limited
sovereignty of local legislatures, or lose American loyalty: “If that sovereignty and
their freedom cannot be reconciled, which will they take? They will cast your
sovereignty in your face. No body of men will be argued into slavery.” Burke’s
arguments would fail, but his keen insight into the future was borne out by events.
Burke made the libertarian argument of free men in March 1775: “Let the colonies
always keep the idea of their civil rights associated with your government,—they
will cling and grapple to you, and no force under heaven will be of power to tear
them from their allegiance.” Failing to do so, they would break away, in pursuit of
Locke’s guarantees.
QUESTIONS
1.
Imagine a world where Edmund Burke succeeded in persuading Parliament to
parlay with the American colonials. Would it have altered their Lockean
ambitions?
2.
What motive do you think guided Burke’s appeal to allow the American
colonies domestic liberty?
3.
As you progress through the book, reflect on Burke’s arguments and ask
yourself: How might his views on domestic liberty have informed the
relationship between the national government and the states?
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Representation
Representation was the most controversial issue in Philadelphia. Following the
election of George Washington as president of the convention, Governor Edmund
Randolph of Virginia rose to present a draft of a new constitution. This Virginia
Plan called for a legislature with two houses: a lower house chosen by the people of
the states, with representation according to population; and an upper house to be
chosen by the lower house (see Table 3.1). Congress was to have the broad power
to “legislate in all cases to which the separate States are incompetent, or in which
the harmony of the United States may be interrupted.” Congress was to have the
power to nullify state laws that it believed violated the Constitution, thus ensuring
the national government’s supremacy over the states. The Virginia Plan also
proposed a form of parliamentary government, in which the legislature (Congress)
chose the principal executive officers of the government as well as federal judges.
Finally, the Virginia Plan included a curious “council of revision,” with the power
to veto acts of Congress.
parliamentary government
A government in which power is concentrated in the legislature, which chooses
from among its members a prime minister and cabinet.
Delegates from New Jersey and Delaware objected strongly to the great power
given to the national government in the Virginia Plan, the larger representation it
proposed for the more populous states, and the plan’s failure to recognize the role
of the states in the composition of the new government. After several weeks of
debate, William Paterson of New Jersey submitted a counterproposal.4 The New
Jersey Plan called for a single-chamber Congress in which each state, regardless of
its population, had one vote, just as under the Articles of Confederation. But unlike
the Articles, the New Jersey Plan proposed separate executive and judicial
branches of government and the expansion of the powers of Congress to include
levying taxes and regulating commerce. Moreover, the New Jersey Plan included a
National Supremacy Clause, declaring that the Constitution and federal laws would
supersede state constitutions and laws.
TABLE 3.1 CONSTITUTIONAL COMPROMISE
A Senate with equal representation according to each state and a House
with representation based on population, and a requirement that both
bodies must approve legislation before it is enacted into law, was a
political compromise between large and small states reached at the
Constitutional Convention of 1787.
The Connecticut
Compromise The
Constitution of 1787
The Virginia Plan
The New Jersey Plan
Two-house legislature,
with the lower house
directly elected based
on state population and
the upper house elected
by the lower.
One-house legislature,
with equal state
representation,
regardless of
population.
Two-house legislature,
with the House directly
elected based on state
population and the
Senate selected by the
state legislatures; two
senators per state,
regardless of
population.
Legislature with broad
power, laws including
veto power over passed
by the state legislatures.
Legislature with the
same power as under
the Articles of
Confederation, plus the
power to levy some
taxes and to regulate
commerce.
Legislature with broad
power, including the
power to tax and to
regulate commerce.
President and cabinet
elected by the
legislature.
Separate multiperson
executive, elected by
the legislature,
removable by petition
from a majority of the
state governors.
President chosen by an
Electoral College.
A Senate with equal representation according to each state and a House
with representation based on population, and a requirement that both
bodies must approve legislation before it is enacted into law, was a
political compromise between large and small states reached at the
Constitutional Convention of 1787.
The Connecticut
Compromise The
Constitution of 1787
The Virginia Plan
The New Jersey Plan
National judiciary
elected by the
legislature.
National judiciary
appointed by the
executive.
National judiciary
appointed by the
president and confirmed
by the Senate.
“Council of Revision”
with the power to veto
laws of the legislature.
National Supremacy
Clause similar to that
found in Article VI of
the 1787 Constitution.
National Supremacy
Clause: the Constitution
is “the supreme Law of
the Land.”
Debate over representation in Congress raged into July 1787. At one point, the
convention actually voted for the Virginia Plan, seven votes to three, but without
New York, New Jersey, and Delaware, the new nation would not have been viable.
Eventually, Roger Sherman of Connecticut came forward with a compromise. This
Connecticut Compromise—sometimes called the Great Compromise—established
two houses of Congress: in the upper house, the Senate, each state would have two
members regardless of its size; in the lower body, the House of Representatives,
each state would be represented according to population. Members of the House
would be
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directly elected by the people; members of the Senate would be selected by their
state legislatures. Legislation would have to pass both houses to be enacted. This
compromise was approved by the convention on July 16.
Connecticut Compromise
A constitutional plan that merged elements of a Virginia plan and a New Jersey
plan into the present arrangement of the U.S. Congress: one house in which each
state has an equal number of votes (the Senate) and one house in which states’
votes are based on population (the House of Representatives).
Slavery
Another conflict absorbing the attention of the delegates was slavery. In 1787
slavery was legal everywhere except in Massachusetts. Nevertheless, the delegates
were too embarrassed to use the word slave or slavery in their debates or in the
Constitution itself. Instead, they referred to “other persons” and “persons held to
service or labour.”
Delegates from the southern states, where slaves were a large proportion of the
population, believed slaves should be counted in representation afforded the states,
but not counted if taxes were to be levied on a population basis. Delegates from the
northern states, with small slave populations, believed that “the people” counted
for representation purposes should include only free persons. The Connecticut Plan
included the now-infamous Three-Fifths Compromise: three-fifths of the slaves of
each state would be counted for purposes both of representation in the House of
Representatives and for apportionment for direct taxes.
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Three-Fifths Compromise
A compromise in the Constitutional Convention of 1787 between pre- and slave
states in which slaves would be counted as three-fifths of a person for both
taxation and representation.
Slave owners also sought protection for their human “property” in the Constitution
itself. They were particularly concerned about slaves running away to other states
and claiming their freedom. So they succeeded in writing into the Constitution
(Article IV, Section 2) a specific guarantee: “No person held to Service or Labour in
one State . . . escaping into another, shall . . . be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.”
Yet another compromise dealt with the slave trade. The capture, transportation,
and “breaking in” of African slaves was considered a nasty business, even by
southern planters. Many wealthy Maryland and Virginia plantations were already
well supplied with slaves and thus could afford the luxury of conscience to call for
an end to slave importation. But other planters from the less-developed southern
states, particularly South Carolina and Georgia, wanted additional slave labor. The
final compromise prohibited the slave trade—but not before the year 1808, thereby
giving the planters twenty years to import all the slaves they needed before the
slave trade ended.
Voter Qualifications
Another important conflict centered on qualifications for voting and holding office
in the new government. Most of the delegates believed that voters as well as
officeholders should be men of property. (Only Benjamin Franklin went so far as to
propose universal male suffrage.) But delegates argued over the specific wording of
property qualifications, their views on the subject reflecting the source of their
own wealth. Merchants, bankers, and manufacturers objected to making the
ownership of a certain amount of land a qualification for officeholding. James
Madison, a plantation owner himself, was forced to admit that “landed possessions
were no certain evidence of real wealth. Many enjoyed them who were more in
debt than they were worth.”
After much debate, the convention approved a constitution without any expressed
property qualifications for voting or holding office, except those that the states
might impose themselves: “The Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State Legislature.” At the
time, every state had property qualifications for voting, and women were not
permitted to vote or hold office. (The New Jersey Constitution of 1776 enfranchised
women as well as men who owned property, but in 1787 a new state law limited
the vote to “free white male citizens.”)
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The Game, the Rules, the Players George Washington,
Founder of a Nation
From the time he took command of the American Revolutionary forces in 1775
until he gave his Farewell Address to the nation in 1796 and returned to his Mount
Vernon plantation, George Washington (1732–99) was, indeed, “First in war, first
in peace, first in the hearts of his countrymen.” His military success, combined
with his diplomacy and practical political acumen, gave him overwhelming moral
authority, which he used to inspire the Constitutional Convention, to secure the
ratification of the Constitution, and then to guide the new nation through its first
years.
Washington was raised on a Virginia plantation and inherited substantial
landholdings, including his Mount Vernon plantation on the Potomac River. He
began his career as a surveyor. His work took him deep into the wilderness of
America’s frontier. This experience later served him well when, at age 21, he was
appointed to be an officer in the Virginia militia. In 1754 he led a small force
toward the French Fort Duquesne, but after a brief battle at makeshift “Fort
Necessity” he was obliged to retreat. In 1755, British Major General Edward
Braddock asked Washington to accompany his heavy regiments on a campaign to
dislodge the French from Fort Duquesne. Braddock disregarded Washington’s
warnings about unconventional combat and parading redcoat forces were
ambushed by the French and Indians near Pittsburgh, and the general was killed.
Washington rallied what remained of the British forces and led them in a
successful retreat back to Virginia.
Washington was subsequently appointed by the Virginia Assembly “Colonel of the
Virginia Regiment and Commander in Chief of all Virginia Forces.” When the
British occupied Fort Duquesne (renamed Fort Pitt), Washington was given the
task of garrisoning it. Washington left his military post in 1759 to return to
plantation life. He married a wealthy widow, Martha Custis, expanded his
plantation holdings, and prospered in western land speculation.
The Virginia legislature elected Washington to attend the First Continental
Congress in September 1774. Washington was the most celebrated veteran of the
French and Indian Wars who was still young enough (42) to lead military forces in
a new struggle. John Adams of Massachusetts was anxious to unite the continent in
the coming contest, and he persuaded the Second Continental Congress to give the
Virginian command of the American Revolutionary forces surrounding the British
Army in Boston in 1775.
Throughout the Revolutionary War, Washington persevered by employing many
of the tactics later defined as the principles of guerrilla warfare. By retreating deep
into Pennsylvania’s Valley Forge, Washington avoided defeat and saved his army.
His bold Christmas night attack against Hessian troops at Trenton, New Jersey,
encouraged French intervention on America’s behalf. Slowly, Washington was
able to wear down the British resolve to fight. After a six-year campaign, he
trapped the British at Yorktown, Virginia. Assisted by a French naval blockade, he
accepted the surrender of Lord Corn-wallis’s 8,000 men on October 19, 1781.
Washington’s greatest contribution to American democratic government occurred
in 1783 in Newburgh, New York, near West Point, where the veterans of his
Continental Army were encamped. These soldiers, unpaid and ignored by
Congress, threatened to use military force if Congress continued to deny their
benefits and invited Washington to lead them. Washington addressed the men and
denounced the use of force to lead a coup against Congress. Washington chose to
preserve representative government rather than assume military rule.
One of the few noncontroversial decisions of the Constitutional Convention in 1787
was the selection of George Washington to preside over the meetings. He took little
part in the debates; however, his enormous prestige helped to hold the convention
together and later to win support for the new Constitution.
QUESTIONS
1.
What is Washington’s most durable legacy?
2.
Was he a “democrat”?
The Economy and National Security
3.4 Analyze the economic and security issues that the Founders faced and the
solutions they reached.
The Founders were just as concerned with “who gets what, when, and how” as
today’s politicians are. Important economic interests were at stake in the
Constitution. Historian Charles A. Beard pointed out that the delegates to the
Constitutional Convention were men of wealth: planters, slaveholders, merchants,
manufacturers, shippers, bankers and investors, and land speculators. Moreover,
most of the delegates owned Revolutionary War bonds that were now worthless
and would remain so unless the national government could obtain the tax
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revenues to pay them off.5 But it is certainly not true that the Founders acted only
out of personal interest. Wealthy delegates were found on both sides of
constitutional debates, arguing principles as well as economic interests.6
Levying Taxes
A central purpose of the Constitution was to enable the national government to
levy its own taxes, so that it could end its dependence on state contributions and
achieve financial credibility. The very first power given to Congress in Article I,
Section 8, is the power to tax: “The Congress shall have Power to lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare.”
taxes
Compulsory payments to the government.
The financial credit of the United States and the interests of Revolutionary War
bondholders were guaranteed by Article VI in the Constitution, which specifically
declared that the new government would be obligated to pay the debts of the old
government. Indeed, the nation’s first secretary of the treasury, Alexander
Hamilton, made repayment of the national debt the first priority of the Washington
administration.
The original Constitution placed most of the tax burden on consumers in the form
of tariffs on goods imported into the United States. For more than a century, these
tariffs provided the national government with its principal source of revenue.
Tariffs were generally favored by American manufacturers, who wished to raise
the price paid for foreign goods to make their home-produced goods more
competitive. No taxes were permitted on exports, a protection for southern
planters, who exported most of their tobacco and, later, cotton. Direct taxes on
individuals were prohibited (Article I, Section 2) except in proportion to
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population. This provision prevented the national government from levying direct
taxes in proportion to income until the 16th Amendment (income tax) was ratified
in 1913.
tariff
Tax imposed on imported products (also called a customs duty).
The power to tax and spend was given to Congress, not to the president or
executive agencies. Instead, the Constitution was very specific: “No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law.”
This is the constitutional basis of Congress’s “power of the purse.”
Regulating Commerce
The new Constitution gave Congress the power to “regulate Commerce with foreign
Nations, and among the several States” (Article I, Section 8), and it prohibited the
states from imposing tariffs on goods shipped across state lines (Article I, Section
10). This power created what we call today a common market: it protected
merchants against state-imposed tariffs and stimulated trade among the states.
States were also prohibited from “impairing the Obligation of Contracts”—that is,
passing any laws that would allow debtors to avoid their obligations to banks and
other lenders.
common market
Unified trade area in which all goods and services can be sold or exchanged free
from customs or tariffs.
Protecting Money
The Constitution also ensured that the new national government would control the
money supply. Congress was given the power to coin money and regulate its value.
More important, the states were prohibited from issuing their own paper money,
thus protecting bankers and creditors from the repayment of debts in cheap state
currencies. (No one wanted to be paid for goods or labor in Rhode Island’s inflated
dollars.) If only the national government could issue money, the Founders hoped,
inflation could be minimized.
Protecting National Security
At the start of the Revolutionary War, the Continental Congress had given George
Washington command of a small regular army—“Continentals”—paid for by
Congress, and also had authorized him to take command of state militia units.
During the entire war, most of Washington’s troops had been state militia. (The
“militia” in those days was composed of every free adult male; each was expected
to bring his own gun.) Washington himself had frequently decried the militia units
as undisciplined,
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untrained, and unwilling to follow his orders. He wanted the new United States to
have a regular army and navy, paid for by the Congress with its new taxing power,
to back up the state militia units.
WARTIME CAN DEFINE A PRESIDENCY
One of America’s most successful wartime presidents, Franklin Delano Roosevelt, led a
comprehensive mobilization during World War II that fundamentally changed America
into the world’s leading power.
War and the Military Forces
Congress was authorized to “declare War,” to raise and support a regular army and
navy, and to make rules regulating these forces. It was also authorized to call up
the militia, as it had done in the Revolution, in order to “execute the Laws of the
Union, suppress Insurrections and repel Invasions.” When the militia are called
into national service, they come under the rule of Congress and the command of
the president.
The United States relied primarily on militia—citizen-soldiers organized in state
units—until World War I. The regular U.S. Army, stationed in coastal and frontier
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forts, directed most of its actions against Native Americans. The major actions in
America’s nineteenth-century wars—the War of 1812 against the British, the
Mexican War of 1846–48, the Civil War in 1861–65, and the Spanish-American War
in 1898—were fought largely by citizen-soldiers from these state units.
Commander in Chief
Following the precedent set in the Revolutionary War, the new president, whom
everyone expected to be George Washington, was made “Commander in Chief of
the Army and Navy of the United States, and of the Militia of the several States,
when called into the actual Service of the United States.” Clearly, there is some
overlap in responsibility for national defense: Congress has the power to declare
war, but the president is Commander in Chief. During the next two centuries, the
president would order U.S. forces into 200 or more military actions, but Congress
would pass an official Declaration of War only five times. Conflict between the
president and Congress over war-making powers continues to this day.
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A Conflicting View An Economic Interpretation of the
Constitution
Charles Beard, historian and political scientist, provided the most controversial
historical interpretation of the origin of American national government in his
landmark book, An Economic Interpretation of the Constitution of the United
States (1913). Not all historians agree with Beard’s economic interpretation, but all
concede that it is a milestone in understanding the U.S. Constitution. Beard closely
studied unpublished financial records of the U.S. Treasury Department and the
personal letters and financial accounts of the 55 delegates to the Philadelphia
convention. He concluded that they represented the following five economic
interest groups, each of which benefited from specific provisions of the
Constitution:
Public security interests (persons holding U.S. bonds from the Revolutionary
War; 37 of the 55 delegates). The taxing power was of great benefit to the
holders of public securities, particularly when it was combined with the
provision in Article VI that “all Debts contracted and Engagements entered
into, before the Adoption of this Constitution, shall be as valid against the
United States under this Constitution, as under the Confederation.” That is, the
national government would be obliged to pay off all those investors who held
U.S. bonds, and the taxing power would give the national government the
ability to do so on its own.
Merchants and manufacturers (persons engaged in shipping and trade; 11 of
the 55 delegates). The Interstate Commerce Clause, which eliminated state
control over commerce, and the provision in Article I, Section 9, which
prohibited the states from taxing exports, created a free-trade area, or
“common market,” among the thirteen states.
Bankers and investors (24 of 55 delegates). Congress was given the power to
make bankruptcy laws, to coin money and regulate its value, to fix standards
of weights and measures, to punish counterfeiting, to establish post offices and
post roads, to pass copyright and patent laws to protect authors and inventors,
and to punish piracies and felonies committed on the high seas. Each of these
powers is a specific asset to bankers and investors as well as merchants,
authors, inventors, and shippers.
Western land speculators (persons who purchased large tracts of land west
of the Appalachian Mountains; 14 of the 55 delegates). If western settlers were
to be protected from the Indians, and if the British were to be persuaded to
give up their forts in Ohio and open the way to American westward
expansion, the national government could not rely on state militias but must
have an army of its own. Western land speculators welcomed the creation of a
national army that would be employed primarily as an Indian-fighting force
over the next century.
Slave owners (15 of the 55 delegates). Protection against domestic
insurrection also appealed to the Southern slaveholders’ deep-seated fear of a
slave revolt. The Constitution permitted Congress to outlaw the import of
slaves after the year 1808. But most Southern planters were more interested in
protecting their existing property and slaves than they were in extending the
slave trade, and the Constitution provided an explicit advantage to
slaveholders in Article IV, Section 2 (later revoked by the 13th Amendment,
which abolished slavery), by specifically requiring the forced return of slaves
who might escape to free states.
Beard argued that the members of the Philadelphia convention who drafted the
Constitution were, with a few exceptions, immediately, directly, and personally
interested in, and derived economic advantages from, the establishment of the
new system. But many historians disagree with Beard’s emphasis on the economic
motives of the Founders. The Constitution, they point out, was adopted in a society
that was fundamentally democratic, and it was adopted by people who were
primarily middle-class property owners, especially farmers, rather than owners of
businesses. The Constitution was not just an economic document, although
economic factors were certainly important.
QUESTIONS
1.
2.
How are property rights incorporated into the Constitution? Why?
Why are private property and contracts important in Beard’s analysis of the
Constitution?
3.
Do you think that framing the Constitution as an economic document reduces
its democratic appeal?
4.
Do you have to choose between property rights and political equality?
Foreign Affairs
The national government also assumed full power over foreign affairs and
prohibited the states from entering into any “Treaty, Alliance, or Confederation.”
The Constitution gave the president, not Congress, the power to “make Treaties”
and “appoint Ambassadors.” However, the Constitution stipulated that the
president could do these things only “by and with the Advice and Consent of the
Senate,” indicating an unwillingness to allow the president to act autonomously in
these matters. The Senate’s power to “advise and consent” to treaties and
appointments, together with the
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congressional power over appropriations, gives the Congress important influence
in foreign affairs. Nevertheless, the president remains the dominant figure in this
arena.
The Structure of the Government
3.5 Explain how the Constitution structured the new government.
The Constitution that emerged from the Philadelphia convention on September 17,
1787, founded a new government with a unique structure. That structure was
designed to implement the Founders’ beliefs in nationalism, limited government,
republicanism, the social contract, and the protection of liberty and property. The
Founders were realists; they did not have any romantic notions about the wisdom
and virtue of “the people.” James Madison wrote, “A dependence on the people is,
no doubt, the primary control on the government, but experience has taught
mankind the necessity of auxiliary precautions.” The key structural arrangements
in the Constitution—national supremacy, federalism, republicanism, separation of
powers, checks and balances, and judicial review—all reflect the Founders’ desire
to create a strong national government while at the same time ensuring that it
would not become a threat to liberty or property.
National Supremacy
The heart of the Constitution is the National Supremacy Clause of Article VI:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof, and all Treaties made, or which shall be made, under the
Authority of the United States, shall be 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.
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National Supremacy Clause
The clause in Article VI of the U.S. Constitution declaring the Constitution and
federal laws “the supreme Law of the Land” superior to state laws and
constitutions and requiring state judges to be bound thereby.
This sentence ensures that the Constitution itself is the supreme law of the land and
that laws passed by Congress supersede state laws. This National Supremacy Clause
establishes the authority of the Constitution and the U.S. government.
Federalism
The Constitution divides power between the nation and the states. It recognizes
that both the national government and the state governments have independent
legal authority over their own citizens: both can pass their own laws, levy their
own taxes, and maintain their own courts. The states have an important role in the
selection of national officeholders—in the apportionment of congressional seats
and in the allocation of electoral votes for president. Most important, perhaps, both
the Congress and three-quarters of the states must consent to changes in the
Constitution itself.
Republicanism
To the Founders, a republican government meant the delegation of powers by the
people to a small number of gifted individuals “whose wisdom may best discern
the true interest of their country, and whose patriotism and love of justice, will be
least likely to sacrifice it to temporary or partial considerations.”7 The Founders
believed that enlightened leaders of principle and property with ability, education,
and a stake in the preservation of liberty could govern the people better than the
people could govern themselves. So they gave the voters only a limited voice in the
selection of government leaders.
The Constitution of 1787 created four decision-making bodies, each with separate
numbers of members, terms of office, and selection processes (see Table 3.2). Note
that in the original Constitution only one of these four bodies—the House of
Representatives—was to be directly elected by the people. The other three were
removed from direct popular control: state legislatures selected U.S. senators;
“Electors” (chosen at the discretion of the state legislatures) selected the president;
the president appointed Supreme Court and other federal judges.
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A Conflicting View The Supremacy Clause at Work in
the Curious Case of Cannabis
The legal status of marijuana is a source of ongoing political debate in the United
States. This debate centers on three issues: (1) medical use, (2) production for
controlled (medical) distribution, and (3) decriminalization of possession and
production.
Many doctors, patients, and organizations contend that marijuana, medically
known as cannabis, is valuable in the treatment of glaucoma, HIV-AIDS, nausea,
and pain relief, especially in cancer patients. As of 2012, 15 states have enacted
medical marijuana laws reversing state-level penalties for possession and
cultivation when patients possess written documentation from physicians stating
that they benefit from its medical use (eight additional states have decriminalized
marijuana possession but do not allow for medical prescription).a Every state
proposition for medical marijuana has passed by large margins except two: in
2010 South Dakota rejected Initiated Measure 13 decisively (63 percent-37
percent), while Arizonans barely passed Proposition 203 (50.1 percent-49.9
percent). National polls regularly report that 75 percent of the American public
support making marijuana legally available to seriously ill patients.
The Controlled Substances Act classifies marijuana as a Schedule I controlled
substance, which means that it “has a high potential for abuse . . . no currently
accepted medical use in treatment in the United States . . . [and] a lack of accepted
safety for use of the drug or other substance under medical supervision.” Schedule
I substances cannot be prescribed. According to the DEA, a drug need not have the
abuse potential of “proven” Schedule I narcotics like heroin or cocaine to be placed
in Schedule I. Petitions to the federal Drug Enforcement Agency to declassify
marijuana as a controlled substance and allow physicians to legally prescribe its
use have been rejected. (There is no documented death from an
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overdose of tetrahydrocannabinol, the psychoactive substance in cannabis.)
Federal law is in direct conflict with the laws of many states on this issue. But the
Supremacy Clause of the Constitution clearly requires that federal law prevail over
state law in cases of conflict. When the issue reached the U.S. Supreme Court in
2001, the Court recognized that whether or not the activities of individuals or
organizations regarding marijuana were legal under California law, they
nonetheless violated federal law. The Court further held that “medical necessity”
does not allow anyone to violate the Controlled Substance Act—Congress made no
exemption in this act for medical necessity. But the Court recognized that the
states have concurrent powers with the federal government in regulating drugs
and medications, though “Under the Supremacy Clause, any state law, however
clearly within a state’s acknowledged power, which interferes with or is contrary
to federal laws must yield.”b
Prosecuting seriously ill patients or their doctors for using marijuana medically is
not politically popular. Under President Obama, the U.S. Department of Justice
announced that it would not “focus federal resources” on marijuana users who
were in compliance with state laws. Nonetheless, there are limits to the cannabis
revolution. Voters in states where medical marijuana is legal appear to have
reservations about further efforts to legalize marijuana. Proposition 19, the
Regulate, Control, and Tax Cannabis Act, appeared on the California ballot in
November 2010, and was rejected by the voters, 53.5 percent-46.5 percent. Four
months later, Los Angeles became the eleventh city where voters approved, 59-41,
Measure M (“for Marijuana”) which imposed an additional 5 percent gross sales
tax on dispenseries selling medical marijuana.c Washington and Colorado voters
approved recreational use of marijuana in 2012.
QUESTIONS
1.
What are the circumstances that favor legalizing marijuana by state voters?
2.
What are the main arguments in favor of decriminalizing pot? Against?
aNational
Association for the Reform of Marijuana Laws. www.norml.org.
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b
United States v. Oakland Cannabis Buyers Cooperatives 523 U.S. 483 (2001).
c“As
L.A. Looks to Shutter Dispensaries, Voters Choose to Cash In,” Sacramento Bee, March 10, 2011.
The Sacramento Bee’s Weed Wars blog maintains ongoing coverage of state and national marijuana
politics (accessed at http://blog.sacbee.com/weed-wars, September 30, 2011).
Democracy?
The Founders believed that government rests ultimately on “the consent of the
governed.” But their notion of republicanism envisioned decision making by
representatives of the people, not the people themselves. The U.S. Constitution does
not provide for direct voting by the people on national questions; that is, unlike
many state constitutions today, it does not provide for national referenda.
Moreover, as noted earlier, only the House of Representatives (sometimes referred
to even today as “the people’s house”) was to be elected directly by voters in the
states.
referenda
Proposed laws or constitutional amendments submitted to the voters for their
direct approval or rejection, found in state constitutions, but not in the U.S.
Constitution.
TABLE 3.2 DECISION-MAKING BODIES IN THE
CONSTITUTION OF 1787
The Constitution of 1787 established four decision-making bodies, only
one of which—the House of Representatives—was to be directly elected
by the people.
House of
Representatives
Senate
President
Single executive.
Supreme Court
The Constitution of 1787 established four decision-making bodies, only
one of which—the House of Representatives—was to be directly elected
by the people.
House of
Representatives
Senate
President
Supreme Court
Members alloted
to each state
“according to
their respective
numbers,” but
each state
guaranteed at
least one
member.
“Two senators
from each state”
(regardless of the
size of the state).
No size specified
in the
Constitution, but
by tradition, nine.
Two-year term.
No limits on
number of terms
that can be
served.
Six-year term. No
limits on number
of terms that can
be served.
Four-year term
Life term or until
(later limited to
retirement
two terms by the
22nd Amendment
in 1951).
Directly elected
by “the People of
the several
States.”
Selected by the
state legislatures
(later changed to
direct election by
the 17th
Amendment in
1913).
Selected by
“Electors,”
appointed in each
state “In such
Manner as the
Legislature
thereof may
direct” and equal
to the total
number of U.S.
senators and
House members
to which the state
is entitled in
Congress.
Appointed by the
president, “by
and with the
Advice and
Consent of the
Senate.”
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Who’s Getting What? Should We Call a New
Constitutional Convention?
Does the United States need a new, more democratic, more perfect constitution?
The U.S. Constitution was drafted more than 220 years ago for a small newly
independent federation with about 3 million persons in 13 member states. Does it
work today for the world’s most powerful nation with over 300 million persons, 50
states, five territories, and global interests? Thomas Jefferson once wrote that “no
society can make a perpetual constitution, or even a perpetual law. The earth
belongs always to the living generation. . . . Every Constitution then, and every
law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of
force and not of right.” Should we take Jefferson’s position to heart? Should we call
a new Constitutional Convention?
What are the problems that exist with the present-day U.S. Constitution?
Prominent political scientists have pondered this question and voiced the
following concerns:
The current Constitution gives small population states the same influence in
the U.S. Senate as it gives large states. The current constitution severely dilutes
the voice of citizens in large population states, such as California, Texas, and
New York, and greatly amplifies the voice of citizens in small states, such as
Wyoming, Alaska, and Vermont.
Not only is the Senate a seriously undemocratic body, but the Electoral
College (with the number of each state delegation equal to the number of its
congressional delegation of members of the House and Senate) also distorts
the voice of the American people in presidential elections. George W. Bush
was elected president in 2000 despite losing the national popular vote.
Members of the U.S. House face very few competitive elections, depriving
voters of effective choices for their congressional representatives, largely
because members of Congress work with state parties in redistricting to design
electoral districts to maximize “safe” seats.
Presidents can go to war and send U.S. troops into combat around the world,
contrary to the wishes of Congress and the American people.
What should be done? Among the recommendations:
Grant states up to four senators based on population size.
Mandate nonpartisan redistricting for House elections.
Establish term limits for representatives and senators, thus restoring the
founders’ principle of frequent rotation in office.
Add a Balanced Budget Amendment, with appropriate escape clauses, in
order to encourage fiscal fairness to future generations.
Limit presidential war-making powers and expand Congress’s oversight of
war making by incorporating into the Constitution a requirement for
congressional assent to ongoing wars at regular intervals.
But would a Constitutional Convention create more heat than light, more conflict
than consensus, more threats than guarantees to individual liberty? Conflicts over
the current hot-button social and cultural issues—immigration, abortion, prayer in
schools, gay rights, the death penalty, the rights of criminal defendants, gun
control, and the like—may poison debate and make compromise on these topics
unlikely. “Any attempt to place constitutional provisions on either side of these
cultural grenades would probably explode the process.” Efforts to reform the
structure of American government and politics would most likely give way to
attempts to “strengthen” or “weaken” the Bill of Rights.
QUESTIONS
1.
It has been argued that the purpose of the amending and convention process
was to allow for periodic debate and revision of our framing document. Do
you think that such a conversation is needed in the United States? What topics
would you want to see addressed?
2.
As you progress through this seminar, ask yourself, ‘what changes would I
propose in a new constitution?’
3.
What do you think are the potential benefits of a new constitutional
convention? The dangers?
4.
Do you think the public would accept a new convention’s proposed
constitution as legitimate?
SOURCES: Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong
(and How the People Can Correct It). New York: Oxford University Press, 2006. Larry J. Sabato, A More
Perfect Constitution: 25 Proposals, to Revitalize Our Constitution and Make America a Fairer Country.
New York: Walker & Company, 2007.
These republican arrangements may appear “undemocratic” from our perspective
today, but in 1787, the U.S. Constitution was more democratic than any other
governing system in the world. Although other nations were governed by
monarchs, emperors, chieftains, and hereditary aristocracies, the Founders
recognized that government depended on the consent of the governed. Later
democratic impulses in America greatly altered the original Constitution (see
“Constitutional Change” later in this chapter) and reshaped it into a much more
democratic document. (See also What Do You Think? Should We Call a New
Constitutional Convention?)
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Separation of Powers and Checks and Balances
3.6 Analyze the separation of powers and the checks and balances established by
the Constitution.
FIGURE 3.1 CHECKS AND BALANCES
The Founders believed that unlimited power was corrupting and that the
concentration of power was dangerous. James Madison wrote, “Ambition must be
made to counteract ambition.” The separation of powers within the national
government—the creation of separate legislative, executive, and judicial branches
in Articles I, II, and III of the Constitution—was designed to place internal controls
on governmental power. Power is not only apportioned among three branches of
government, but, perhaps more important, each branch is given important checks
and balances over the actions of the others (see Figure 3.1).
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