chap 2
Constitutional Democracy
A government whose powers are subject to recognized and enforced limits on the power of all government officials.
Texas values highlighted: individualism, liberty, constitutionalism, equality. (Reference to LBJ signing the 25th Amendment as a historical anchor.)
The Constitution
What is a constitution?
A document that allocates power and responsibilities and also limits power.
Forms:
Formal (US)
Informal (United Kingdom)
In the beginning …
Colonial governments operated via compacts.
The Puritans (Pilgrims) established a theocracy.
Around the beginning, but a little afterwards …
Other colonies (MD, NY, NJ, PA, DE, NC, SC, GA) came from royal grants.
They were established as proprietary colonies.
What’s a proprietary colony? And why is it important?
Royal grant for part of SC to John Graham in 1767 from Great Britain.
But we don’t have a parliamentary system…
State legislatures borrowed: the idea of bicameralism and some procedures of how a bill becomes a law.
The American Revolution
The 2nd Continental Congress began to meet in 1775. Goal? Independence and coordination of war efforts.
The pamphlet Common Sense by Thomas Paine helped galvanize support for separation.
1776 – separation was considered inevitable and by July, the Declaration of Independence was written.
Key ideas in the Declaration (influenced by John Locke):
Social contract
The colonists are created equal, have natural rights, and government derives its powers from the governed.
Consent of the governed provides legitimacy through elections.
What is a natural right? Unalienable rights include life, liberty, and the pursuit of happiness.
Locke’s caveat: rights were often described in terms of property ownership (freeholders); rights were historically limited to those who owned property or had substantial wealth, excluding many groups (e.g., convicts, indentured servants, slaves, Native Americans, women).
The Declaration’s emphasis on consent, legitimacy, and natural rights laid groundwork for constitutional government.
The Articles of Confederation
What was a Confederation?
THE CONSTITUTIONS OF THE SEVERAL INDEPENDENT STATES OF AMERICA; articles created a loose union of states.
What is good about the Articles?
A central government existed that could declare war and make peace.
It represented the first organized agreement among the states: a league of friendship.
What was wrong with the Articles?
Problems: insufficient national power to tax, regulate commerce, fund defense, or manage money.
No mechanism to compel states to cooperate (leading to commercial warfare between states).
Important questions:
Were the states independent countries loosely joined, or an interconnected country?
Why is this a big deal?
It highlighted the limits of national power and set the stage for a new design of governance once failures became evident (e.g., Shay’s Rebellion).
Shay’s Rebellion as a catalyst for change demonstrated the need for a stronger national government.
The Constitutional Convention
Shay’s Rebellion (Sept 1786) catalyzed the call for a Constitutional Convention (May 1787).
74 delegates were invited; 55 arrived; about 40 participated in meaningful work.
Proceedings were kept secret to encourage frank debate.
Who were the founders? Notable figures included James Madison and other delegates who drafted the framework.
Convention began May 25, 1787 in Philadelphia; weather was hot and sticky; by late August, many delegates departed for various reasons.
Representation in Congress
Two major plans debated: the Virginia Plan and the New Jersey Plan.
Virginia Plan (favored by larger states):
3-branch government.
Bicameral legislature (two houses).
Membership in both houses proportional to population; lower house elected by the people; upper house elected by the lower house.
Strong legislature; an executive (selected by the legislature) to enforce will; a judiciary with life terms appointed by the legislature; impeachment power over national officers.
The executive and some of the national judiciary could veto legislation, subject to override; national veto over state legislation.
New Jersey Plan (favored by smaller states):
Maintained the existing Congress (unicameral) with expanded powers like taxation and collection.
An executive (multi-person) elected by Congress; term limits and recall by state governors.
A judiciary with life terms appointed by the executives.
Laws of Congress precedence over state laws; protected small states with equal state representation (one state, one vote).
Great Compromise (Connecticut Compromise):
Bicameral legislature.
Lower House: representation by population.
Upper House: two senators per state (equal representation).
Revenue and budgeting considerations highlighted as important governing functions.
The Issue of Slavery:
Slavery was not initially mentioned in the Constitution; North-South tensions complicated representation and taxation.
3/5ths Compromise: slave population counted as 3/5ths for purposes of representation and taxation in the House of Representatives. rac{3}{5}
Result: representations and political power in the House for the slaveholding South were increased relative to free populations.
The Presidency
Framers worried about creating a monarchy; hence concerns about a strong, unchecked executive.
The presidency as designed by the compromises did not resemble a king; the creation of checks and balances limited executive power.
Electoral College System:
Electors are selected to cast votes for the president; there is no direct popular vote for the presidency.
Each state gets a number of electors equal to its total number of Senators and Representatives: Es = Ss + R_s; minimum electors per state is 3.
Majority of the total electors determines the winner (no longer just a simple popular majority).
The Framers anticipated possible outcomes and designed the system to likely produce a non-popular winner or a compromise candidate.
What Kind of Government Did the Framers Create?
Key features:
Republican form of government
Federalism
Separation of powers (Articles I, II, III)
Checks and balances to prevent domination by any single faction or branch
The Supremacy Clause and the Elastic (Necessary and Proper) Clause:
Supremacy Clause asserts that the Constitution and federal laws take precedence over state laws when there is a conflict.
Elastic Clause (Necessary and Proper Clause) grants Congress the power to pass laws needed to execute its enumerated powers.
Enumerated powers and Implied powers:
Enumerated powers are expressly granted to Congress in the Constitution.
Implied powers arise through the Necessary and Proper Clause to carry out enumerated powers.
The Bill of Rights (the first 10 amendments):
Protects basic liberties and places limits on federal power over individuals.
Full Faith and Credit Clause:
Requires states to recognize and honor the public acts, records, and judicial proceedings of other states.
Implied Powers and a Practical Example
Implied powers have been used to expand federal authority beyond explicit text.
Example prompt: banning prostitution across state lines involves interstate issues and federal power justified through implied powers and commerce-related arguments.
Ratifying the Constitution
Ratification required the approval of 9 of the 13 states (not all 13 as with the Articles).
The debate pitted Federalists (who supported a strong national government) against Anti-Federalists (who favored states’ rights).
The Federalist Papers served as propaganda and argumentation in support of ratification (e.g., Hamilton, Madison, Jay).
Federalists tended to come from urban, coastal areas; Anti-Federalists from rural, farming regions (Patrick Henry is a notable Anti-Federalist).
The absence of a Bill of Rights in early drafts fueled Anti-Federalist concerns; compromise led to the inclusion of the Bill of Rights to secure ratification in several key states (e.g., Virginia and New York).
Ratification results:
Small states ratified fairly quickly; Virginia and New York were pivotal and initially hesitant.
George Washington’s support helped sway ratification locally and nationally.
Constitutional Change
How the Constitution can change:
Formal amendment
Judicial interpretation
Political practice
Amendments: 27 total as of now.
Amendment processes:
Method 1 (never used): National convention called by Congress at the request of two-thirds of state legislatures; proposed amendments go to states for ratification (never used).
Method 2 (used): Proposal by two-thirds of both Houses of Congress, followed by ratification by states:
Option A: three-fourths of state legislatures ratify (most common).
Option B: three-fourths of states ratify via special ratifying conventions (used for the 21st Amendment).
Why is the amendment rate so low?
The balance of power and deliberative process create inertia; amendments require broad consensus.
Notable potential amendments that were proposed but not ratified:
1791: Apportionment of representation
1861: Abolition of slavery power (initially proposed prohibition; later linked to the 13th Amendment issues)
1924: Child labor protections
1982: Equal Rights Amendment (ER A)
1989: District of Columbia voting rights
The 27th Amendment and Gregory Watson:
The UT-related figure Gregory Watson helped resurrect and promote the idea of congressional pay amendments; the 27th Amendment deals with congressional pay changes taking effect after the next election.
Why so few amendments?
Ongoing tension between balancing power, preserving national unity, and allowing change only when there is broad consensus.
How amendments have shaped government:
Expanding or limiting national power
Expanding the electorate and civil rights
Introducing or curbing state power
Causing structural changes in government
Judicial Interpretation
The Constitution evolves through Supreme Court decisions (judicial review).
Marbury v. Madison established judicial review, enabling courts to strike down laws or actions that violate the Constitution.
The right to privacy (as interpreted in Roe v. Wade) illustrates how judicial interpretations can expand or constrain rights over time.
Political practices and technology have also shaped constitutional practice (e.g., party development, conventions, media).
Movement Toward Democracy
American history depicts a republic with limited government and restrictions on direct participation that has progressively become more democratic:
From a system prioritizing property requirements and limited franchise to expanding suffrage and civil rights over time.
Federalist No. 10
Author: James Madison (via Federalist No. 10)
Key questions: What is a faction, and how can it be managed?
Two proposed cures for faction:
Remove its causes (e.g., eliminate liberty or establish uniform opinions) – Both are undesirable because they threaten liberty and diversity of thought.
Control its effects (the more practical solution) – Create a large republic with a variety of interests to prevent any single faction from dominating.
If you remove effects, you destroy liberty or impose uniformity of opinions; this is worse than the disease of faction.
If you control effects, the diverse and competing interests will prevent any single faction from gaining unchecked power.
Why do factions arise? Causes include unequal distribution of property, creditors vs. debtors, manufacturers vs. merchants.
The solution: Extend the sphere so many factions exist; competition among factions prevents one from consolidating power.
Important caveat: The framers did not foresee only two major political parties in the long term.
Connections and Significance
Foundational ideas:
Social contract and popular sovereignty
Natural rights and the consent of the governed
The balance between liberty and order
Practical implications for today:
Federalism continues to shape policy disputes (state vs. federal power)
The balance of power among branches guards against tyranny
The debate over slavery and civil rights remains central to constitutional interpretation
Ethical and philosophical implications:
The inclusion and treatment of enslaved people in the constitutional framework (3/5 compromise) raises enduring questions about equality and human rights.
The absence/presence of a Bill of Rights affected the ratification process and the ongoing protection of liberties.
Real-world relevance:
The structure of Congress, the presidency, and the judiciary informs contemporary governance and public debates.
The amendment process demonstrates how the Constitution can adapt to new social, political, and technological realities.