The U.S. Constitution: Constitutionalism and Enlightenment Influences - Vocabulary Flashcards

Influences of the Constitution: John Locke

• John Locke (1632-1704)

• Notable works include: "Second Treatise on Government", "A Letter Concerning Toleration", and "The Reasonableness of Christianity"

• Enlightenment thinker known as the “father of liberalism”

• Championed political ideas such as a natural right to property, political legitimacy derived from the individual consent of the governed, and classical republicanism

John Locke on Christianity

• Quote: "I assume there will be no one to the deny the existence of God, provided he reconized either the necessity for some rational account of our life, or that there is a thing that deserves to be called virtue or vice" – John Locke

Influences of the Constitution: Jean Jacques Rousseau

• Jean Jacques Rousseau (1712-1778)

• Notable Works include: The Social Contract, Discourse on Inequality, and Discourse on Political Economy

• Championed political ideas such as that everyone is born free and equal, human beings are inherently good, and society corrupts man

Jean Jacques Rousseau on Christianity

• Rejected the belief that human beings are born with original sin

• Believed man was born good originally but became corrupted by society

• Ascribed to a form of deism

• Believed that Christianity and religion in general were important to the state but was a proponent of adopting a “civil religion”

• Civil religion included various beliefs that were fundamental to united society and stable state

Comparisons Between Locke and Rousseau

• John Locke

  • Natural equal rights: life, liberty, property

  • Individual freedom to act as one desires

  • Government as necessary mediator to protect natural rights

  • Limited government is good

  • Purpose of government: secure individual rights and liberties

  • Individuals consent to the government but have right to resist when government abuses its power

• Jean Jacques Rousseau

  • Natural equal rights as well

  • Political community important

  • The Social Contract is political community where natural freedom and equality exist

  • Majority in control (minority “forced to be free”)

  • In favor of a direct democracy

  • Purpose of government: freedom is secured by the society/majority

  • Individuals (or majority) are the government and make the laws

Constitutionalism

• A constitution provides the basic principles of organization and operation of a government

• It describes political and government institutions, powers, and functions

• Limits governments to the terms in the constitution

• "All power tends to corrupt, and absolute power corrupts absolutely" – Lord Acton

• Constitutions may help restrain the government from abusing its powers as well as provide parameters for the government to operate in

James Madison’s approach

• The will of the people

• "Auxiliary precautions": (1) separation of powers and (2) checks and balances

• Constitutionalism relies on the premise of the rule of law

• Political leaders and government institutions are not above the law because a constitution functions as a higher law above them

• Constitutions typically indicate the rights and liberties of individuals, including human rights

Constitutionalism Overview

• Constitutionalism:

  • Limits power of government and rules

  • Governmental leaders subject to the law

  • Institutes limitations on government powers to prevent tyranny

  • Protects individual rights and liberties

The Slow Spread of Constitutionalism

• U.S. Constitution is the oldest, continuous constitution in effect in the world.

• 200 years old and still in effect plus amendments!

• More than half of the world’s constitutions were created post-1990.

• Freedom House report findings:

  • In 1900, no states qualified as democracies, but 25 states (12.4% of world’s population) had “restricted democratic practices.”

  • By 1950, a “second wave” of democracy resulted in 22 democracies (31% of world population).

  • By end of 20th Century, “third wave” resulted in 120 democracies (62% of world population).

  • It now remains to be seen how these democracies will function or even survive the 21st Century.

  • Is it surprising to know that it has taken this long for constitutions to become popular despite the ideas of constitutional governments being proposed over 300 years ago?

Comparison: Constitutionalism & Democracy

• Tension between the rule of law and protection of rights of all individuals (constitutionalism) vs majority rule (democracy)

• "The central goal of a constitution is to create the preconditions for a well-functioning democratic order, one in which citizens are genuinely able to govern themselves. [O]ne of the principal purposes of a constitution is to protect not the rule of the majority but democracy’s internal morality, seen in deliberative terms. A system in which many people cannot vote or vote equally, or in which some people have far more political power than others, violates that internal morality." – Cass Sunstein (p. 10)

Constitutional Structure

• Preamble

  • Provides general purpose of document and foundation for a theory of governmental action

  • Outlines social and political goals

  • U.S. Constitution is generally free of ideological content and partisan rhetoric aside from statements relating to individualism and communitarianism

  • Other countries have preambles that promote a certain ideology, chronicle its history, or identify a cultural or ideological foundation.

Constitutional Structure 2) Organizational Chart

• Blueprint of public power ("power maps" according to Duchacek)

• Establishes government institutions, procedures, and dispute resolution

• 3 main principles of American constitutional structure:

  • Separation of powers

  • Federalism

  • Judicial Review

Separation of Powers

• In U.S. Constitution, separation of powers is demonstrated in the establishment of the legislative, executive, and judiciary branches

• Founders' intent was to avoid concentration of power in a single branch of government, particularly the executive

• Federalist No. 51 – "Ambition must be made to counteract ambition"

• Checks and balances – one branch of government has some power over another

• Separation of powers in the U.S. takes the form of a republican system

• Other forms of separation of powers include the parliamentary system, in which the executive power is embodied by a prime minister and cabinet chosen from the majority party in the legislature

Federalism

• Federalism is a system that provides powers to legitimate subnational institutions and governments.

• Functions as an additional check on concentrated power by the division of power among the national and state governments.

• The Founding Fathers disagreed on whether the national government or the states should embody the supreme sovereignty of the nation.

• Prior to the formation of the Constitution, the Founders established the Articles of Confederation in which the states had superior power over the federal government.

• Federal systems make constitutional governments when the constitution establishes effective restraints on all governmental power (example of non-constitutional federalism: USSR)

Judicial Review

• Judicial Review is the power of the judiciary to review and invalidate legislation and executive action when it is inconsistent with the Constitution (p. 12).

• Judicial Review is a check on centralization of power by limiting government power to the parameters of the Constitution.

• However, Judicial Review modifies and redefines the limits of the Constitution every time a federal judge uses the power of judicial review.

• Marbury v. Madison established the power of judicial review and held that the Supreme Court (SCOTUS) is the only entity that can interpret and determine the meaning the Constitution.

• “It is emphatically the province and duty of the judicial department to say what the law is.” – Marbury v. Madison

Constitutional Structure 3) Amendatory Articles

• Article V – 2 Stage process for incorporation into the Constitution

• Proposal – either rac{2}{3} vote of both houses of Congress OR a national constitutional convention.

• NOTE: a constitutional convention has never been called and debate exists over the proper process for calling a convention

• Ratification – proposed Amendment must be ratified by rac{3}{4} of the states either by 1) their state legislatures or 2) special convention called for this purpose.

• 27 Amendments (10 of which constitute the Bill of Rights)

• Many other countries will change their entire constitution rather than add amendments.

Constitutional Structure 4) Bill of Rights

• Usually a section of a constitution that indicates the rights, freedoms, and liberties of citizens that the government cannot abridge

• U.S. Constitution has 10 Amendments known as the Bill of Rights

• The Bill of Rights in the Constitution do not represent the only rights belonging to citizens in the U.S.

• Additional rights have been created via later Amendments, other Articles of the Constitution, and the Supreme Court in official opinions issued by the Court.

• Negative Rights: Limit government’s ability to infringe on rights of citizens (p. 16).

• Positive Rights: rights that require governments to act positively to ensure economic and social entitlements (p. 16).

• Duty Statements: Indicate duties of citizens to the government and their rights (p. 16).

Constitutional Approaches: Individualism

• Individualist (or Classical Liberal): assumes individuals takes precedence over government (p. 18).

• Individuals possess inherent rights governments must preserve.

• Individuals should have autonomy to make their own decisions without government assistance.

• Government should provide institutions and mechanisms that enable individuals to exercise their rights and pursue private interests.

• Government necessary since individuals have conflicting interests.

• A procedural view of justice: the political system is legitimate as long as it is fair and equally applies rules and procedures to all.

• Individualist proponents include John Locke, John Stuart Mill, Milton Friedman, and Ayn Rand

Constitutional Approaches: Communitarianism

• Communitarian (or Classical Republican): people need the community and its values to nurture their development and enable them to make proper choices (p. 19).

• Government exists to create a political community for individuals to come together to resolve public problems, not just ensuring individual rights.

• Communitarianism will typically choose the public interest over individual rights when a conflict between the two exists.

• The community is intrinsically necessary to individuals and, therefore, the majority sometimes must impose values on the minority.

• Substantive view of justice: emphasizes the fairness of the results obtained and views inequality in society as detrimental to the community.

• Communitarian proponents include Aristotle, Cicero, Rousseau, Benjamin Barber, and Robert Bellah.

Historical Influences on the U.S. Constitution

• Ancient Constitutionalism (communitarian)

  • Athens/Greece – Aristotle (the rule of law above all, which is guided by reason).

  • Rome – viewed British rulers as modern Caesars, Cicero (the natural law, higher law over all, government limited by natural law, judicial review).

  • Noticeably absent is any mention of individual rights.

• Medieval Constitutionalism

  • Combined the ideas of limited government with individual rights.

  • St. Thomas Aquinas and John of Salisbury argued the natural law came from God that limits human authority.

  • A legitimate king abides by the natural law; an illegitimate king is an oppressive tyrant.

  • Christianity emphasized the individual who retain natural rights.

  • England – the Magna Carta (required the king to respect feudal rights of the nobility).

Historical Influences on the U.S. Constitution (English Common Law)

• English Common Law

• Combination of indigenous customs with judicial interpretations.

• An unwritten higher law/constitution.

• Case-oriented (not code-oriented).

• First, limited king’s power; later, limited parliament.

• Two principles American Constitutionalism retained from the English Common Law.

• Precedent and reasonableness.

• Legal guarantees/rights (i.e. trail by jury, due process, etc.)

• Parliamentary limits on the king

• Enacted laws regarding the Petition of Right, Habeas Corpus, and Bill of Rights.

• Removed and replaced oppressive kings.

• Anti-Establishment members of Parliament and writers.

Historical Influences on the U.S. Constitution (Religious Ideas and Practices)

• "The impact of religion on American constitutional development is unmistakable." (p. 24).

• Religion and American constitutionalism both contend the existence of a higher law

• Religion and American constitutionalism both retain principles of law and law-making.

• Religion and American constitutionalism both promote the concepts of individualism and communitarianism.

Colonial Experience

• Two developments that molded the colonial theory and practice:

  • Increased coordination of colonial affairs from England - English laws began to increasingly apply to the colonies except for English constitutional rights.

  • The colonial assemblies - Gave the colonist significant experience in self-governance and independence in law making from the English crown and Parliament.

From Revolution to Founding

• The American Revolution was unique because the revolutionaries believed they were fighting to preserve their fundamental rights.

• American colonists had already maintained their independence from England in practice by migrating to the colonies, seeking religious and political asylum, and establishing self-governing bodies.

• The Revolutionaries were not fighting against the English constitution but on behalf of it.

• After the Seven Years’ War, England acquired large war debt and instituted oppressive policies throughout the empire to pay off the debt.

From Revolution to Founding

• Two Parliamentary acts planted the seeds of colonial resentment:

  • The Sugar Act of 1764

  • The Stamp Act of 1765

• Honorary mention: limitation in colonial settlement past the Alleghenies.

From Revolution to Founding (Constitutional issues)

• Three constitutional issues propelling the colonists to revolution:

  • Claims to fundamental rights stemming from the English constitution.

  • Colonial differentiation between the law and a constitution.

  • Colonial self-governments and self-determination.

Declaration of Independence

• The Continental Congress ("CC") began cutting ties with Great Britain.

• April 6, 1776 – The CC opened all American ports to foreign trade in opposition to the trade restrictions imposed by England.

• May 15, 1776 – The CC transferred all government power from Great Britain to the colonists and instructed the colonies to end their ties to the crown to create new governments.

• June 7, 1776 – Richard Henry Lee introduces a resolution in the CC to dissolve any allegiance to Great Britain and to declare the independence of the American colonies.

• July 2, 1776 – All but 3 delegates of the CC voted to adopt the resolution.

• July 4, 1776 – The Declaration of Independence was read in the CC.

• August 2, 1776 – The Declaration is signed by the delegates of the CC.

Declaration of Independence

• Why is the Declaration important to the Constitution?

• It expresses ideas of human nature, foundations of government, and purpose of political entities that would be carried into the Constitution.

• It espoused ideas foundational regarding changes in a constitutional system.

Declaration of Independence (What is in the Declaration)

• Starts by indicating the intent of the colonies to become their own independent nation.

• Includes statements regarding natural rights of individuals.

• "All men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, & the pursuit of happiness."

• Provides the rationale for declaring independence from Great Britain.

• Outlines the wrongs committed by Great Britain toward the colonies.

• Evidence of both individualism and communitarianism.