Enlightenment Philosophies

• Framers lived at a time when there were new ideas about government organization/function

  • Challenged systems already in place

• Enlightenment (18th century): a philosophical movement that began in Western Europe with roots in Scientific Revolution

  • Use of reason over tradition when solving social problems

• Thomas Hobbes (Leviathan - 1660): believed that people could not govern themselves and that a monarch with absolute power would protect life best

  • Advocated for rule of law

  • Social contract with government: some freedoms sacrificed (respecting government) in exchange for government protection

• John Locke (Second Treatise on Civil Government - 1690): natural rights must be protected

  • Empiricism: people are born with a tabula rasa (blank slate) on equal footing and everything they do is shaped by experience

  • Natural rights (life, liberty, property) are granted by God and government must protect them

    • Right to revolution if natural rights are taken away

• Charles de Montesquieu (De l’Esprit des Lois/The Spirit of the Laws - 1748): separation of power into three branches of government

  • Checks and balances limited power of each branch

• Jean-Jacques Rousseau (The Social Contract - 1762): people are born good but corrupted by society and should act for the greater good rather than out of self-interest

• Voltaire (Candide): satirical novel, reflected dislike of Christian power and nobles

  • Rationality, advocate of freedom of thought, speech, religion, and politics

• Denis Diderot: producer/editor of first encyclopedia, wanted to change the ways people thought by adding his own/others’ philosophies to his work

  • Advocate of freedom of expression and universal education access

  • Criticized divine right, traditional values, and religion

• Philosophers favored democracy over absolute monarchy

• Forms of representative democracy:

  • Participatory democracy: broad participation in politics/society by people at various statuses

  • Pluralist democracy: group-based activism by citizens with common interests who seek the same goals

  • Elite democracy: power to the educated/wealthy, discourages participation by the majority of people

• Republicanism: supports individualism and natural rights, popular sovereignty (people give the government power), encourages civic participation

  • American Republicanism characterized by representative democracy

    • Elected officials representing a group of people

  • Popular sovereignty: government power derives from the consent of the governed (ex. elections, protests)

The Declaration of Independence

• A formal declaration of war between America and Great Britain

• Written by Thomas Jefferson

• List of grievances (“crimes” King George III committed against the colonies)

  • Used to explain why the colonies are declaring independence

• Used as a template by other nations declaring independence

The Weaknesses of the Articles of Confederation

• Outlined the first government of the United States of America

• Predecessor to the Constitution

• Followed from 1776 to 1781; ratified and named in 1781

• Accomplishments:

  • Created federalism: the way in which federal and state/regional governments Interact and share power

  • Ended the Revolutionary War on favorable terms for the United States (Treaty of Paris - 1783)

  • Established the Northwest Ordinance, which created methods through which states would enter the US

• Weaknesses:

  • 1787: trade between states declined, monetary value dropped, foreign countries posed threats, social disorder throughout the country

    • Shays’ Rebellion (1786-1787): 6-month rebellion formed by over 1,000 farmers in which a federal arsenal was attacked in protest of the foreclosure of farms in western Massachusetts

      • Major concern at the Constitutional Convention

      • Exposed issues with Articles of Confederation and showed necessity of a strong central government

  • Could not impose taxes (result of taxation without representation); only state governments could levy taxes

    • National government was in debt from the Revolutionary War had no way to pay for expenses

      • Could only acquire money by requesting it from states, borrowing from other governments, or selling lands in the West

  • No national military; could not draft soldiers

  • No national currency

  • No Supreme Court to interpret law

  • No executive branch to enforce laws

  • No control over taxes imposed between states and could not control interstate trade

  • Needed unanimous votes to amend the Articles

  • 9/13 states had to approve legislation before it was passed

  • Could not control states

  • No enforcement mechanisms/requests from within federal government

  • Needed to be revised

    • Constitutional Convention created Constitution

    • resulted in complete rewrite of the Articles => Constitution

The Constitutional Convention

• Meeting of the framers in 1787 in Philadelphia, Pennsylvania

  • Division over powers, structure, and responsibilities of government

  • Some believed that the government under the Articles was too weak, others believed that it shouldn’t be changed

  • Generally accepted as pragmatists who tried to protect their and everyone else’s property + rights

  • Stronger central gov’t necessary, potential to be corrupted

    • Federal legislature had two main issues:

      • Unicameral (single house) vs bicameral (two house) legislative branch

        • Madison’s Virginia Plan: bicameral legislature based on population size

          • Supported by larger states b/c of better representation

        • New Jersey Plan: unicameral legislature, one vote per state

          • Similar to Articles of Confederation

          • Smaller states worried that gov’t would be dominated by larger states

        • The Great Compromise (Connecticut Compromise): a bicameral legislature with a House of Representatives (population) and Senate (equal representation)

    • Representation of enslaved people

      • Northerners: enslaved people should not be counted for electoral votes

      • Southerners: enslaved people should be counted for electoral votes

        • Larger population when enslaved people were counted

      • Three-Fifths Compromise: enslaved people would be counted as 3/5 of a person when deciding seats in the House of Representatives

  • Authority to enforce laws

    • Created chief executive (president)

      • Enforcer of the law, could keep the legislative branch in check

      • Presidential approval required before bills become law

      • President can veto acts of legislature

        • Congress can override veto if 2/3 of both houses vote

  • Supreme Court

    • Could mediate disputes between legislative and executive branches, between states, and between state + federal government

  • Acceptance of the Constitution

    • Had to be submitted to states for ratification

    • Federalists: supporters of the Constitution, advocated for a strong central government

      • Alexander Hamilton, James Madison, and John Jay wrote The Federalist Papers: a collection of articles supporting the Constitution

        • Best reflects original intent of the framers

        • Persuaded states of the superiority of a strong central government plus power kept by the states

    • Anti-Federalists: opponents of the Constitution, preferred smaller state governments (Articles of Confederation)

      • Believed that the Constitution would threaten personal liberties and make the president a king

      • Feared tyranny + abuse of power

      • Wanted a Bill of Rights: protects the rights of citizens from the government

        • Guaranteed by the Federalists and was added immediately after ratification

        • 10 amendments written by James Madison

  • Created the Electoral College: composed of elected officials from each state based on population (each given 2 votes + 1 vote per member of House of Representatives) with a total of 538 electors

    • Originally created because the framers didn’t trust American citizens to be educated enough to choose a good president

    • Thought the Electoral College would protect election against the influence of small groups

    • Would ensure that states with larger populations didn’t completely overpower smaller states

    • The presidential candidate who wins 270 electoral votes wins the election regardless of who wins popular vote

The Federalist Papers and Anti-Federalist Dissent

Brutus No. 1

• Anonymous author (pseudonym Brutus) asked questions about + critiqued the draft of the Constitution

• The first publication that began a series of essays known as the Federalist and Anti-Federalist Papers

• National government had too much power, an army could prevent liberty, and representatives may not truly be representative of the people

• Major dissent: The Federalist Papers attempted to answer questions and address concerns posed by Brutus + other Anti-Federalists

Federalist No. 10

• Written by James Madison

• Addresses dangers of factions + how to protect minority interest groups in a nation ruled by majority

• Argues that a large republic keeps any single faction from taking control

• Major dissent: Anti-Federalists thought that Madison’s claims were unrealistic and that a country with multiple factions could never create a good union

  • Believed that no large nation could survive and that states’ separate interests would fracture the republic

Federalist No. 51

• Written by James Madison

• Argued that separation of powers would make the government efficient, dividing responsibilities and tasks

• Major dissent: Anti-Federalists believed that there was no perfect separation of powers and that one branch of government would eventually hold more power

Federalist No. 70

• Written by Alexander Hamilton

• Argued that the executive branch should only have one member: the president

  • Used the British monarchy as an example: the king had power but was checked by the House of Commons

• Proposed term limits as another way to limit the president’s power (not set until the 22nd Amendment in 1951)

• Major dissent: Anti-Federalists believed that only the president’s staff would influence him and disagreed with giving control of the military to one person

Federalist No. 78

• Written by Alexander Hamilton

• Addressed concerns about the power of the judicial branch

• Argued that the judicial branch would have the least amount of power under the Constitution but would also have the power of judicial review

  • Check on Congress

• Major dissent: Anti-Federalists claimed that a federal judiciary could overpower states’ judiciaries and that judges’ lifetime appointments could result in corruption

The Constitution as an Instrument of Government

• The Constitution is vague and only outlines the government structure

  • Written to allow change through amendments

  • Branches of government have evolved since ratification

• Articles I-III: set up the three branches of government (in order):

  • Legislative branch

  • Executive branch

    • “The executive power shall be vested in a President of the United states of America”

      • Power to issue executive orders

        • Same effect as law, bypasses Congress in policy-making

        • Not mentioned in the Constitution

        • Used as part of the enforcement duties

        • Ex. Executive Order 9066: FDR ordered people (Japanese and German Americans) from a military zone

      • Executive agreements between country leaders are similar to treaties

        • Bypass ratification power of the Senate

        • Not mentioned in the Constitution

  • Judicial branch

    • Marbury v. Madison (1803): Supreme Court increased its own power by giving itself the power to overturn laws passed by legislature (judicial review)

• Article I, Section 8 - the necessary and proper clause: allows Congress to make any legislation that seems “necessary and proper” to carry through its powers

  • Aka the elastic clause

  • Ex. nothing in the Constitution that creates the Federal Reserve System (central bank), nothing about the executive branch’s cabinet

  • Federal District Courts and Courts of Appeals both created by Congress

• Supremacy clause: supremacy of Constitution and federal laws over state laws

  • “and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”

Federalism

• A system of government under which the national and local governments share powers

• Ex. Germany, Switzerland, and Australia

• Confederation: a system in which decisions are made by an external member-state legislation; decisions on daily issues are taken by special majorities, consensus, or unanimity

• Supreme Court cases:

  • McCulloch v. Maryland (1819): court ruled that states could not tax national bank

    • Reinforced supremacy clause of Constitution - issues between state + federal government laws should be ruled in favor of federal

    • Necessary and proper clause - banks were necessary to implement federal powers

  • United States v. Lopez (1995): challenge to the Gun-Free School Zones Act of 1990 (banned guns on school property)

    • Held that commerce clause didn't allow regulation of carrying guns

    • New phase of federalism - state sovereignty and local control were important

Powers Under Federalism

• Delegated (enumerated) powers: powers that belong to the national government

  • Ex. printing money, regulating interstate + international trade, making treaties + conducting foreign policy, declaring war, est. post offices, lower courts, rules of naturalization, and copyright/patent laws; raising + supporting armed forces, making all laws “necessary and proper” to carry out duties

• Reserved powers: powers that belong to the states

  • 10th Amendment: include any that the Constitution neither gives to the national government nor denies to the states

  • Ex. issuing licenses, regulating intrastate business, conducting elections, est. local governments, maintaining a justice system, educating residents, maintaining a militia, providing public health, safety, and welfare programs

• Concurrent powers: shared by federal and state governments

  • Ex. levying/collecting taxes, building roads, operating courts, establishing courts, chartering banks + corps, eminent domain, paying debts, borrowing money

• Constitution specifies which powers are denied to national government and states

• Constitution makes federal government guarantee states a republican government and protection against rebellion + invasion

  • Prevents states from dividing or combining without congressional approval

• States are required to accept court rulings, licenses, contracts, or other civil acts of other states

• Changed over time

  • First: federal/state governments were independent

    • Most Americans had contact w/government on state level

• Denied powers:

  • Federal government:

    • Suspend writ of habeas corpus except during a national crisis

    • Pass ex post facto laws or issuance of bills of attainder

    • Impose export taxes

    • Use money from treasury without appropriations bill

    • Grant titles of nobility

  • State government:

    • Enter into treaties w/other countries

    • Declare war

    • Maintain an army

    • Print money

    • Pass ex post facto laws or issuance of bills of attainder

    • Grant titles of nobilities

    • Impose import or export duties

• Federal government programs

  • Most administered through states

  • Paid for by federal government through grants-in-aid

    • Some politicians tie strings to grants (federal government still in control over money)

    • Other politicians want no strings attached (state/local government decides how to spend)

  • Grants:

    • Categorical grants: aid with strict rules from the federal government about how it is used

      • Used by those who favor federal power

    • Block grants: aid that lets the state use the money how it wants

      • Used by those who favor states’ rights

    • Federal government can still use techniques to make states follow federal law

      • Ex. direct orders, preemption

• Advantages of federalism:

  • Mass participation (many can participate on many issues)

  • Regional autonomy (states still have some powers)

  • Multi-level government (local, state, federal; many politicians connected to supporters)

  • Innovative methods (states can experiment with policies)

  • Diffusion of power (no party domination)

  • Diversity in government

• Disadvantages of federalism

  • Lack of consistency (differing policies creates inequality in states)

  • Inefficiency (overlapping/contradictory policies)

  • Bureaucracy (corruption/stalemate through spread-out power)

  • Resistance

  • Inequity (legislation/judicial outcomes)

Separation of Powers

• Borrowed idea from French political philosopher Charles de Montesquieu

• Assigned different tasks to each branch of government

  • Legislative branch makes laws

  • Executive branch enforces laws

  • Judicial branch interprets laws

• Prevents a person from being in more than one branch at a time

  • Has to resign in order to change positions

System of Checks and Balances

• Designed to prevent any branch of government from becoming dominant

• Requires different branches to work together and share power

  • Examples:

    • Nomination of federal judges, cabinet officials, and ambassadors

      • President chooses nominees who must be approved by the Senate

    • Negotiation of treaties

      • President is empowered to negotiate treaties, but they cannot go into effect until approved by 2/3 of the Senate

    • Enactment of legislation

      • Congress passes legislation, but the president can veto (reject) laws

        • Encourages Congress to pass laws that align with the president’s views or negotiate to avoid being vetoed

        • Congress can override veto by passing a law with 2/3 majority in both houses

          • Law becomes law regardless of president

        • Courts can determine constitutionality of law and overturn laws if they are unconstitutional

Amendment Process

• Amendment: the addition of a provision to the Constitution

• Main process:

  • Proposed amendment must be approved by 2/3 of both houses of Congress

  • 3/4 of state legislatures must ratify (approve) the amendment, and the states themselves are allowed to determine the votes required to ratify the amendment

  • Congress can also mandate that each state use a ratifying convention (delegates elected to vote on the amendment)

    • Used once to ratify the 21st amendment (1933) - ended prohibition

• Another process:

  • 2/3 of state legislatures petition Congress for a constitutional convention

    • Never happened before

State and Local Governments

• State governments

  • Can take any form, but must have a state constitution approved by Congress

  • Most structured after federal government

  • Executive branch led by governor

    • Direct state executive agencies (education, roads/building, policing)

    • Command state National Guard

    • May grant pardons and reprieves

    • Most can appoint state judges with the “advice and consent” of a state legislative body

    • Can veto state legislation

    • May use a line-item veto to reject parts of bills

      • Denied to presidents by Supreme Court - would take too much power away from legislature

  • 49/50 states have bicameral legislatures

    • Enact state law

    • Can override the gubernatorial (governor) veto

  • State judiciaries interpret state law

    • Trial courts and appeals courts

    • Hear criminal cases and civil cases (lawsuits)