HIST 447 Final

The Federalists begin to disregard and forget their promise of a Bill of rights:

James Madison emphasizes that their initial promise can't be broke and it will be indicative of a un-trustworthy government!

James Madison receives over a 100 proposed amendments for the Bill of rights and divides it into 3 categories:

Limiting National government/Clarifying relationship between State and National Government/Individual rights (He chooses individual rights)

There are 2 separate ways an amendment may be proposed:

2/3 vote of both houses of congress/¾ of the state legislatures

The danger of the constitutional convention:

you summon and call forth The sovereignty of the people!! American politicians have avoided this way.

The most common method is a 2/3 vote of both houses that create an amendment, however, there is only one instance where

the state legislatures created an amendment: Prohibition

There have been 4,000 proposed amendments, but only 27 have been successful.

This shows just how difficult it can be to propose and create an amendment!

The first pathway gives power to the government to make alterations to the constitution.

The amendment process that has been used 26 times have been done by the government.

Bodenhamer states:

the purpose of rights is to promote liberty and not individuals.

All rights are limited and restricted and are not absolute. These rights are relational, for example:

the government may not regulate the context and integrity of speech, unless it incites lawlessness.

When the bill of rights was approved, up until the Civil War

it didn't apply to the states!

Amar argues that the Bill of Rights adds up to a 2nd constitution, and the Bill of rights boils down to:

popular sovereignty, federalism, and divided sovereignty.

James Madisons support for alter and abolish and for the Bill of Rights is indicative

of Madison changing his political ideologies

The Founders not placing an Alter or abolish in the Constitution points to the fact that

the supporters of the constitution viewed the people as a passive sovereign

The Bill of Rights didn't apply to the states up until

the Civil War

it seems contradictory for the Bill of rights to only apply to the central government and not the local governments

People were much more comfortable with state and local government in comparison to a national government.

The Bill of Rights will not be ratified by popular sovereignty, therefore how can it be legitimately applied to the constitution?

It's considered a supplement to the constitution.

Amar makes a distinction between free persons vs first-class citizens

Free persons: Women who enjoyed certain rights but who didn't enjoy political rights

First-class citizens:

Free persons who were part of the sovereign people

Early Americans did not equate rights with equality.

Americans at this time had respect for equal opportunities.

Negative equality:

It was wrong for the government to promote inequality by law as in promoting special individuals or privileges by law.

George Washington had a deep disdain for politics and perceives his position as ceremonial

Alexander Hamilton and his cabinet do a majority of the governing

The Government had an enormous debt of 81 million dollars, with some being owed to France and Holland, but a vast majority

was owed to citizens through bonds and certificates

The Bonds and certificates issued by the government depreciate in value greatly and

speculators/businessman buy exorbitant amounts of them as investments

These mogul Businessmen and speculators were gambling with the bonds and certificates, planning to

get Alexander Hamilton to a place of power

Alexander Hamilton was going to pay the bonds back expensively/with interest, and he did not care if these debts were transferred to urban areas/ businessmen:

Rural areas are going to complain that this fiscal plan to re-finance the economy is just profiting the few speculators

An economic struggle ensues between Producers Vs. Non-producers

Non-producers: Drs, Lawyers, Merchants, businessmen (Have all the wealth and power)

Producers:

Strenuous workers, farmers, and more

Insider trading value (Modern terms):

Many congresses bought up many of the debt because they knew Alexander Hamilton was going to pay back at Face Value.

Alexander Hamilton wants to create a national bank and it not to be subject to popular political pressure and issue paper money.

It's essentially a for-profit bank that is a capitalist institution. The properties and chief stockholders are going to get rich!

Thomas Jefferson will argue the National Bank as unconstitutional and Alexander Hamilton will find the constitutional authority from

the "necessary and proper" clause.

Alexander Hamilton test to determine if congress has constitutional authority on the matter, ends & means:

If the end and the overall objective is constitutional, and it helps the government, then it's constitutional objectives.

Thomas Jefferson implores a different test for the constitutionality of this National bank:

Is this bank indispensable for the new operation of the new government??

2 things that sound the constitutional alarm for both Jefferson and Madison:

Alexander Hamilton's bold interpretation of the Necessary and proper/Alexander Hamilton's scheme for re-financing the country greatly privileged the speculators

Whiskey Regulation of 1794 Ordinary rural people complain about the rich and powerful restoring aristocratic rule and politics.

They complained about taxes, shortage of money, land speculation, and an excise tax on whiskey.

Excise Tax:

A tax on manufactured goods and homemade whiskey. There is a federal tax on whiskey.

Rural people used distilled whiskey to trade as a currency for bartering.

Because of poor roads and spoiling food, this whiskey was important to the rural economy. (income tax)

The Farmers close roads, rough up excise agents, and tarring and feathering.

Hamilton tells GW this is sedition, and state militias are brought under federal control and 13,000 men are mobilized.

The Whiskey rebellion/regulation:

IS a conflict between different views of the constitution and the people's sovereignty.

Foreign issues:

foreign war with British and french ensuing. George Washington would decide neutrality, in the wars of French and Britain.

Jay Treaty:

American foreign policy tilting in favor of Great Britain and France launched an unofficial quasi-war with America due to this treaty.

the XYZ affair-

A 1797 incident in which French officials demanded a bribe from U.S. diplomats

Adams is going to worry about these French immigrants who might be saboteurs, and their loyalty might lie with French:

Alien and Sedition acts will be passed

Alien act:

first anti-immigrant laws, length of residence for qualifying for citizenship. The President had sweeping authority over any immigrant he deemed a threat.

Sedition act:

Made some speech criminal, false information that defamed the government, and speech against the government.

Kentucky/Virginia Resolutions:

Jefferson advanced: States right to nullify, that states could make national laws unconstitutional also, the sedition act is unconstitutional!

In the Kentucky/Virginia Resolutions, Madison:

Advanced the idea of interposition.

Interpose:

State legislatures had the right to impose their authority to protect citizens from the encroachment of rights from the government. (savvy wording)

Interposition:

The states sound the constitutional alarm to the people that their rights have been violated, and the people fix the problem.

In the Sedition act, the United States had exceeded its constitutional authority.

Virginia is shielding the people from the encroachment.

The Virginia legislature was just an expression of opinion, and it was to ring the alarm

to the sovereign, the people.

Federalists used the Necessary and Proper clause to legitimize the alien and sedition acts:

Federalists include a date of expiration for the acts

The date of expiration make it quite evident these acts are

Partisan influenced and used to quell the Republicans before the Republicans achieve office next term!

English free speech theory of seditious libel:

you can't stop the person from speaking and writing, but once you have done it, they can come after to put you in jail. The truth was not a defense.

Sedition Act: Truth can be a defense, and they argue it was a liberalizing of free speech:

Who is to define this truth? This will not help Republicans anyway.

Compound republic:

Constitutional system that is partly national and Partly Federal.

A compound republic further uses 3 branches within each government:

The two governments are separate and independent, and this provides real security to protect liberty

Planetary solar system: How it remains intact=

Can be destroyed by too much big government or too much state independence. There must be a balance between the two!

Supremacy clause:

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws.

Articles 3:

Created a national judiciary and lower-level courts and the most of the national courts' jurisdiction is appellate and not original.

Original jurisdiction is a court

that hears and decides the case first.

Appellate:

A higher court to review what the lower court did to ensure they got the law correct.

Judiciary Act of 1789:

1. Supreme court is at the apex (1) 2. Circuit Courts (3) 3. District courts (13)

District court:

jurisdiction in crimes enumerated by the constitution.

Circuit courts:

3 circuit courts were set up. 3 judges would serve on the panel. They dealt with civil matters and it became the focus of judiciary activity.

Supreme court:

6 members with a chief justice and 5 associate justices.

Section 25 of the Judiciary Act of 1789:

Gave the supreme court the right to review and overturn if necessary!!

The law is not explicit about the Judicial court being capable of reviewing the national government itself,

such as congress and the presidency.

Important analysis and explanation for judicial review.

The two judges support that the constitution represents fundamental law and that the authority of the constitution supersedes any ordinary law of government/legislature.

Judges represent and serve the people to protect the people's constitution, and this responsibility doesn't exclusively belong to courts and judges.

Presidents, legislators, state courts, and executives all have the duty to protect constitutional rights.

Judicial review, as it first develops, is not just associated with courts as all agents of the government must uphold the government:

Judicial review should not be used haphazardly but only in the constitutional nature that it's absolutely clear and used sparingly.

Early judicial review decisions are going to involve reviewing and striking down state laws and state decisions:

Judicial review is only directed at the states at the beginning.

Federal common Law: Distinct versions of state common law. However, If there was only one common law,

the federal law would expand the federal courts' reach.

The lame duck was the allotted time when the president or congress

had already lost but was still in charge until changed out.

The federalists would galvanize the national judiciary with the lame-duck president and lame-ducky congress.

Federalists wanted to use this judiciary to keep power when they lost the executive and legislative branch.

Judiciary act of 1801:

Enhance federal power over the judiciary, and this greatly increase the number of federal courts. 3 circuit courts are transformed into 16!

When Republicans take over they immediately repeal this law and they will pass the Judiciary act of 1802 that will

set the stage for Marbury v Madison.

Chief justice John Marshall court assumes its place in the constitutional system as a distinct place in the national government.

Marshall was a cunning legal and political mind.

William Marbury had been assigned to a low-level judgeship during the federalists numerous appointments before being taken out of office:

Jefferson repudiates all other judges paper work who have not been appointed.

Midnight judges:

An attempt by the federalists to fill all the judges with their own appointments. Late appointments in which they run out of time!

Marbury goes to the court and seeks a writ of mandamus:

Judicial order that has been ordered by a court directed at some party and the judicial order will mandate that party to do something.

The current political relationship between republicans/president and the federalists/court is

incredibly poisonous

Marshall is aware of the tumultuous relationship and public opinion to disband the court:

he fears if he orders Jefferson for the Writ of Mandamus there would be a political war and the Court may be completely eradicated!!

The supreme court had largely been given appellate jurisdiction and not original jurisdiction. However, Marbury had gone to the wrong court

because he needed original jurisdiction

Marshall tells Marbury no and his reasons are:

A direct confrontation between the president and the court, would cripple the support and destroy the institution that could make rulings but could not enforce their rulings. (they would look like the weak sister)

This case was an assertion of judicial review but it didn't establish judicial review:

Judicial review has a long history and doesn't have one quick sweep. It's established by precedent over 150 years and there is no clear constitutional authority.

Marshall's decision is both political and legal:

His decision may have well saved the supreme court of the United States.

War of 1812 (sailor rights)

New England states are strongly opposed to the war because it economically cripples them and they refuse state militias to send me to fight.

Hartford Convention 1814: Delegates from New England gathered in a convention, it was a meeting of the people.

This convention could invoke the sovereignty of the people and try to argue for interposition.

The delegates expand the idea of interposition:

In the final report, a state legislator blocks or stop a national law that the state believed was unconstitutional.

The threat: The states act as sovereign, Their ideology about interposition anticipates state veto!

the state's right to stop, arrest, and repudiate a national law that they deemed unconstitutional.

Hartford convention is trying to use interposition to stop the National conscription law:

force military service for men.

The federalists don't want new western states because it would just increase the political hold republicans held!

Federalists don't want to go to war with Britain because of maritime trade.

The U.S. will barely win the war of 1812 and the Federalists party will be eradicated because

of the traitorous stigma they received from the Hartford Convention

Subjects of the British crown can't renounce their perpetual allegiance and must remain loyal, however, Americans have Expatriation:

This is a choice of citizenship

Market Revolution:

based on organizing production for a wider market than home use.

Before the Market Revolution it was a simple economy, but this sudden change will

fundamentally change how Americans worked, lived, and thought about liberty and property.

Safety first agriculture: The point of the land was not to get rich or acquire profit.

It fundamentally threatened the tradition of family farms. (farms turn into businesses rather than subsistnece)

From an economic standpoint, The transition from self-employment to wage labor is prominent:

Personal independence is what made a man free and it was rooted in owning land! People had become wage slaves!

Factory production shifted artisan and skilled labor to essentially deskilling labor into:

to break a complicated job of production into small jobs.

Major changes in the Law:

The law will become an instrument and servant of this new capitalist system!