POL211: The American Founding and Constitutional Principles
The Founding and the Problem of Slavery
Declaration of Independence and the Paradox of Slavery
The core contradiction in the founding of the United States was the commitment to the principle "all men are created equal" alongside the toleration of slavery.
Jefferson's Stance: While personally owning slaves, Thomas Jefferson included a condemnation of the slave trade in an early draft of the Declaration, accusing the King of thwarting colonial efforts to abolish it. This indicates an awareness of slavery's immorality.
Practical Problem: The founders grappled with the practical challenge of abolishing slavery due to a large enslaved black population lacking education, job training, and self-sufficiency, raising fears of societal chaos upon immediate emancipation. There was also a lack of government services (direct welfare) to aid such a transition at the time.
Initial Beliefs on Slavery's Demise
Many founders, including Eric Sands, believed slavery would naturally "die out" in a few generations.
Reasons for this belief (pre-cotton gin):
Slavery was widely considered an inefficient economic system. Most Southern farmers were subsistence level, not getting rich from it. Crops like wheat, corn, sugar, and tobacco (the most profitable of these) were not making slaveholders wealthy.
The expectation was that if a more efficient labor system (e.g., free labor) could be devised, Southerners would abandon slavery.
Constitutional Compromises on Slavery
Southern Demands: At the Constitutional Convention, Charles Pinckney of South Carolina explicitly stated that there would be no Constitution unless slavery was protected. Slave states threatened non-ratification and potential secession or alignment with foreign powers (Spain, France, England) if slavery was not accommodated.
Dilemma for Union: To form a functioning nation and enact the Constitution, compromises were deemed necessary, as ratification required three-quarters of the states.
The Three Major Compromises:
Three-Fifths Compromise:
Provision: Slaves were counted as three-fifths of a person for purposes of both representation in Congress and direct taxation.
Southern View: Southerners wanted to count slaves as full persons to increase their political power in the House of Representatives and the Electoral College.
Northern View: Northerners opposed counting slaves as full persons for representation while simultaneously denying them human rights.
"Anti-Slavery" Interpretation: Despite appearing to support slavery, this compromise could be viewed as an anti-slavery incentive. Southern governors, by emancipating slaves, would see them count as whole persons for representation, gaining more power and potentially benefiting from reduced taxation (though this never materialized as a direct incentive due to enforcement).
Importation Clause (Slave Trade Clause):
Provision: Congress was prohibited from banning or regulating the importation of slaves for 20 years after the Constitution's ratification (until ).
"Anti-Slavery" Interpretation: This was seen by some as an anti-slavery measure because it set a future end date for the transatlantic slave trade. The hope was that by limiting the supply, slavery would become economically unsustainable and eventually disintegrate. This would also force Southerners to consider free labor as a replacement.
Free Labor Argument: Free labor was considered more efficient because: employers did not pay for healthcare, lodging, food, or upkeep; laborers could negotiate wages; and motivated free laborers (working for money) were more productive and required fewer overseers.
Land Scarcity & Go West: At the end of the Revolution, available land along the Eastern Seaboard was limited. The idea was that young farmers, without land, would become free laborers. This was based on an expectation of slavery's natural decline.
Fugitive Slave Clause:
Provision: Required that escaped slaves who fled to free states be returned to their owners.
Ambiguity: The Constitution did not specify who was responsible for their return (federal government, state governments, or slave owners themselves). This led to significant practical and legal problems over the next 40 years, with Northern states increasingly denying its efficacy, which angered Southerners and fueled their belief that the Constitution was being violated.
Language and Contradictions in the Constitution
"Persons held to Service or Labor": The Constitution intentionally avoided using the word "slavery," instead referring to enslaved individuals as "persons." This was not an accident.
"Persons" Implication: Recognizing slaves as "persons" implies that they possess certain fundamental rights, creating a blatant contradiction with their status as property. This was a forward-looking element, anticipating slavery's eventual demise.
Southern Defense of Slavery (Pre-Cotton Gin)
"Necessary Evil": Southerners generally viewed slavery as a "necessary evil," acknowledging its immorality but believing it was essential for their economy. They argued that without slaves, their agrarian system would collapse.
Historical Precedent: They also pointed to ancient civilizations like Rome and Greece, which relied on slavery, arguing it was a "normal, politically developmental process."
Qualitative Difference in American Slavery: Unlike many historical forms of slavery where enslaved people could buy their freedom or their children were born free, slavery in America became inextricably linked to race. This meant that the abolition of slavery would also necessitate addressing deeply entrenched racism.
Frederick Douglass's Analogy: Douglass famously described slavery in the Constitution as "scaffolding on a building" – ugly but temporary, implying it would eventually be removed to reveal a beautiful edifice (the true American ideal).
The Rise of Slavery and Sectional Conflict
The Agrarian Ideal Challenged
At the founding, it was plausible to believe slavery was on the path to destruction due to its economic inefficiency and the vision of free labor replacing it.
Utopian Dreams: Some, like Jefferson, even entertained utopian ideas like repatriating freed slaves to Africa (e.g., Liberia), though this was logistically impractical for the vast enslaved population.
The Cotton Gin and Economic Transformation
Eli Whitney's Invention (1793): The cotton gin dramatically increased the profitability of cotton production.
Southern Advantage: Southern soil proved ideal for growing high-quality cotton.
Industrial Revolution in England: England's booming textile industry created a "ravenous desire" for raw cotton, with mills able to produce at "unbelievable rate of speed" if fed raw material.
Cash Crop: Cotton became an immensely lucrative "cash crop." By , the rate of return on cotton equaled all other domestic farm products combined.
Slavery Becomes Affordable: Although still an inefficient system, the massive profits from cotton made slavery an "inefficiency that they can afford," much like a Ferrari owner can afford premium gas despite its inefficiency.
Westward Expansion and the Entrenchment of Slavery
Louisiana Purchase (1803): Thomas Jefferson's Louisiana Purchase more than doubled the size of the United States, providing vast new agricultural land.
No Pressure for Free Labor: This expansion removed the pressure on Southerners to transition from slave labor to free labor, as there was now ample land for expansion and continued reliance on enslaved labor.
Resistance to Change: Economic systems entrenched for centuries are difficult to change due to habit and perceived stability, even if theoretical alternatives exist.
Missouri Compromise (1820)
Rising Tensions: By , the question of whether new territories would enter the Union as free or slave states became a bitter point of contention in Congress.
The Line: The Missouri Compromise drew a geographical line across the Louisiana Purchase territory. States admitted north of the line would be free; states south of the line could be slave states.
Jefferson's Alarm: Upon learning of the Missouri Compromise, Jefferson famously wrote that it struck him "like a fire bell in the night," signifying alarm and foreboding. He saw it as a dangerous fire that could engulf the whole society.
"Wolf by the Tail": Jefferson acknowledged the dire problem: "We have the wolf by the ears, and we can neither hold him nor safely let him go." He felt it was a generational problem beyond his ability to solve.
Haitian Revolution (1791-1804) and Slave Uprisings
Fear of Race War: News of the brutal Haitian Revolution (where enslaved people massacred the white population) and other Caribbean uprisings fueled deep fears among Southerners of a similar race war if American slaves were emancipated.
Demographic Reality: In states like South Carolina, enslaved people outnumbered the white population, intensifying these fears.
Shifting Southern Ideology: From Necessary Evil to Positive Good
Northern Public Opinion on Slavery
Not simplistic: While many Northerners believed slavery was morally wrong, this did not equate to a desire for immediate emancipation or racial integration.
Racial Prejudice: Many Northerners were uncomfortable with an integrated society and viewed freed blacks as competition for scarce jobs. They were anti-slavery but still racist, not wanting blacks in their neighborhoods, schools, or churches.
Southern Intellectual Transformation
From "Necessary Evil" to "Positive Good": Over time, Southern intellectual currents shifted from viewing slavery as a "necessary evil" to proclaiming it a "positive good" beneficial for both whites and blacks.
Biblical Justifications: Southern preachers increasingly cited Old Testament passages seemingly condoning slavery, leading to a "theological war" over its morality.
Racial Superiority: Jefferson himself noted that slavery fostered a mindset of racial superiority in slave masters, hard to overcome. This ingrained belief created an intellectual foundation that made abolition even harder.
"Ethnology" and Pseudoscience: The emerging field of sociology in the South (often ethnology) produced "research" purporting to show the inherent intellectual inferiority of blacks. A notorious example involved skull measurements to "prove" white intellectual superiority, justifying black individuals for manual labor.
Medical Pseudoscience: Southern physicians even invented "diseases of the mind" to explain "aberrant behavior" like wanting to escape slavery, essentially pathologizing the desire for freedom.
Confirmation Bias: This "scientific" evidence was widely publicized and accepted in the South due to confirmation bias, reinforcing existing prejudices.
Abolitionism and Conflicting Interpretations of the Declaration
William Lloyd Garrison and the Abolitionist Movement (1830s)
Prominent Advocate: Garrison, publisher of The Liberator, was a leading figure demanding immediate abolition ("now, no more waiting").
Declaration of Independence as Foundation: Abolitionists drew heavily on the Declaration, particularly the phrase "all men are created equal" and endowed with "certain natural rights."
Higher Law Doctrine: For Garrison, the Declaration was "divinely inspired" and represented "divine law." Any law or constitutional provision contrary to it was "null and void" and lacked legitimacy.
Critique of the Constitution: Garrison deemed the Constitution an "evil document" due to its compromises with slavery. He theatrically ripped copies of it in public, arguing it violated God's law and the Declaration.
Stephen Douglas and Popular Sovereignty (1850s)
Architect of Compromise: Douglas was a key politician, instrumental in the Compromise of and the Kansas-Nebraska Act of .
Lincoln-Douglas Debates (1858): Famous debates for an Illinois Senate seat, which elevated Lincoln to national prominence.
Douglas's View on the Declaration: He acknowledged the Declaration's significance but argued it applied only to "men of European birth or dissent" (white men), not Indians or Negroes. His proof was that the founders didn't abolish slavery immediately if they truly believed in universal equality.
Indifference to Slavery: Douglas claimed indifference to slavery's morality, believing the decision should be made locally, not nationally.
Doctrine of Popular Sovereignty: His solution: let the "people of the states" decide through a vote whether to permit or ban slavery. Each state would be sovereign in its decision, and no state could impose its moral values on another.
Analogies (Marijuana, Immigration): This approach is analogous to modern debates where national consensus is lacking (e.g., marijuana legalization, sanctuary cities) and issues are deferred to state-level decisions.
Critiques of Popular Sovereignty:
Simplistic Politics: Douglas's view made politics seem overly simplistic, avoiding morally difficult choices (e.g., choosing between slavery and disunion).
Damning Oversight: Lincoln and others, however, argued that just because rights aren't recognized doesn't mean they don't exist. The founders faced a "moral tangle," choosing union over immediate abolition, believing slavery would eventually die out.
Moral Relativism: Popular sovereignty implies that fundamental rights and moral questions (e.g., about a right to rape) could be put to a vote, which Lincoln found abhorrent.
Lincoln's Absolute Morality: Lincoln believed, "If slavery isn't wrong, then nothing is wrong." Fundamental principles like equality and natural rights are not subject to popular vote; they are secured by the Declaration and must be protected for all citizens.
John C. Calhoun and the Assault on Natural Rights
Oregon Bill Speech: Calhoun vehemently argued against allowing Oregon as a free state.
Full Assault on the Declaration: He attacked the Declaration's premise of "all men are born free and equal" as a "hypothetical truism" and "the most false and dangerous of all political errors."
"Men are not born": Calhoun annoyingly argued that "infants are born," and they are incapable of freedom and necessarily subject to their parents, thus not born free or equal.
Critique of State of Nature: He challenged the Lockean concept of the state of nature, arguing no historical evidence of humans living in isolation existed. He asserted that humans always lived in social and political communities.
Implications: If the state of nature is hypothetical, then natural rights and equality derived from it are also hypothetical.
Political Community as Natural State: For Calhoun, the "political condition" (living under government with laws, morals, ethics) is the only natural state for human beings.
Equality as a Human Construct: Equality is not inherent but is a product of laws and values decided by a political community.
Declaration as "Baloney": Calhoun viewed the Declaration as a mere "breakup letter" with Britain, devoid of lasting meaning beyond securing independence. He believed its principles of equality were irrelevant to how American society should be organized.
Relativism: Calhoun's political science was based on moral relativism – morals, values, and ethics are relative to time, place, and circumstance, with no universal authority.
North vs. South as Distinct Communities: He argued that the North (adhering to Declaration principles) and the South (devoted to inequality and repudiation of the Declaration) were two distinct political communities. Neither could impose its values on the other.
Foregone Conclusion: This fundamental clash over first principles made civil war a "foregone conclusion."
Lincoln's Reinterpretation of the Founding and the Civil War
Lincoln's Vision (Reply to Calhoun)
Jefferson's Principles Overthrown: In a letter for Jefferson's birthday, Lincoln noted the "total overthrow" of Jefferson's principles by those who denied the Declaration's axioms.
Axioms of Free Society: Lincoln equated Jefferson's principles with the "definitions and axioms of free society" (like Euclid's geometry), arguing that denying them prevents any rational discussion or construction of a just society.
Targeting Critics: He identified specific critics:
Rufus Choate: "glittering generalities"
John Calhoun: "self-evident lies"
Stephen Douglas: argued Declaration applied "only to superior races."
Gettysburg Address (1863)
Reframing the Founding: Began "Four score and seven years ago" (87 years before, marking as the true founding), establishing the Declaration of Independence, not the Constitution, as the nation's foundation.
New Axiom: "Conceived in Liberty": Lincoln subtly altered the Declaration's "all men are created equal" axiom to "a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."
Liberty as Axiomatic: He argued that no man has a natural right to rule over another, which is self-evident from observing infants. "Conceived in liberty" leads to "all men are created equal." This counters Calhoun's argument about infants being unequal.
Equality as an Ongoing Process: Unlike an axiom that is just "given," making equality a "proposition" derived from liberty implies it's an ongoing process requiring continuous reinforcement and dedication by each generation.
Emphasis on "Dedicated": Lincoln's repetitive use of "dedicated" (e.g., "so conceived and so dedicated," "we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure") underscores the active, ongoing commitment required to uphold the nation's founding principles.
New Birth of Freedom: The war itself was a test, and the Union's victory would bring a "new birth of freedom," where the government and people are devoted to equality.
Target Audience: Primarily Northern public opinion, urging perseverance in the war effort.
Lincoln's Second Inaugural Address (1865) (Reply to Douglas)
Context: Delivered shortly before the war's end, after Lincoln's re-election.
Expectations vs. Reality: Northerners expected a celebratory speech, details on Reconstruction, and the future of freed slaves.
"With Malice Toward None, With Charity For All": Lincoln offered a conciliatory tone, asking for forgiveness rather than vengeance for the South.
The War's Cause: Slavery: He unequivocally stated that slavery was the "somehow the cause of the war," rejecting other justifications.
God's Judgment: Both North and South read the same Bible and prayed to the same God for victory, but neither received full answer. Lincoln concluded that God had His "own purposes" and was punishing both sides for the sin of slavery. The war's immense cost (750,000 dead) was God's retribution: "every drop of blood drawn with the lash shall be paid by another drawn with the sword."
No Prediction of End: Lincoln refrained from predicting the war's end, acknowledging it was in God's hands until the sin was absolved.
"Firmness in the Right": Moving forward required "firmness in the right as God gives us to see the right." This meant affirming the moral truth that slavery is wrong.
Reconstruction Vision: Lincoln's call for "malice toward none, with charity for all" aimed to unite the nation, avoiding vengeful policies that would create another rebellion. This Christian-inspired grace was crucial for rebuilding.
Presidential Use of Scripture: Lincoln frequently quoted the Bible, which was unusual for presidents at the time (John Quincy Adams was the only prior president to do so, only once). Lincoln's use was often admonishing and integral to his message.
Henry Wirz Case: Lincoln's lenient approach to Reconstruction was exemplified by the fact that only one Confederate leader, Henry Wirz (commander of Andersonville prison), faced the death penalty for war crimes, not for secession.
The Great Depression and the "Second Bill of Rights" (FDR)
Context: Great Depression (1930s)
FDR's Response: Elected in , FDR promised aggressive government intervention (New Deal programs) to relieve economic suffering (e.g., TVA, Hoover Dam).
Emergency Measures: Initially, these interventions were presented as temporary, emergency measures to restore the market, not a permanent shift in governmental philosophy.
FDR's 1944 State of the Union Address
Inalienable Political Rights: FDR first affirmed the traditional "inalienable Political Rights" from the Declaration ("life and liberty"), such as free speech, press, worship, trial by jury.
Inadequate for Equality: He argued that these political rights proved "inadequate to assure us equality in the pursuit of happiness" amid an expanded industrial economy.
Economic Security as Freedom: "True individual freedom cannot exist without economic security and independence." People who are hungry and out of work are not truly free.
"Second Bill of Rights": FDR proposed a "second Bill of Rights," asserting that "these truths have become accepted as self-evident." This implied a governmental obligation to ensure economic security and prosperity for all.
Congressional Rejection, Statutory Enactment: While Congress rejected these as constitutional amendments, many elements were enacted through statutory law (e.g., minimum wage, Social Security, public education).
Examples of Economic Rights:
Right to a Useful & Remunerative Job: Implies minimum wage, meaningful work (like Barry College's "life works" program).
Right to Adequate Food, Clothing, and Recreation: Led to programs like food stamps. "Adequate" is subjective and often debated (e.g., healthy food restrictions).
Right to Adequate Medical Care and Good Health: Aimed at affordable healthcare (like Obamacare) and implicitly, public health measures.
Right to Protection from Economic Fears of Old Age, Sickness, Accident, Unemployment: Social Security.
Right to a Good Education: Public education, and later debates about college affordability versus trades.
Right of Farmers to a Decent Living: Agricultural subsidies.
Right to Protection from Monopolies: Antitrust laws.
Classical vs. Modern Liberalism and the Quest for Equality
Transformation in American Politics: Classical to Modern Liberalism
Classical Liberalism (lowercase 'l'): John Locke, Montesquieu, Adam Smith advocating for "government which governs best governs least." Emphasizes negative rights and small, limited government.
Modern Liberalism (uppercase 'L'): Post-FDR, emphasizes positive rights and a larger "welfare state."
Negative vs. Positive Rights
Negative Rights: Rights possessed by individuals that protect them from government (e.g., Bill of Rights protections like free speech, freedom from unreasonable searches). Government's role is to not interfere.
Positive Rights: Rights possessed by individuals, the exercise of which requires government assistance (e.g., right to a minimum wage, decent home, adequate food, good education, Social Security). Government's role is to actively provide.
Size of Government
Classical Liberalism: Limited government, as government is seen as the primary threat to rights.
Modern Liberalism: Welfare state, with government providing public welfare. Debate over "how much is enough" is continuous, leading to ever-expanding government programs.
Public Opinion Dilemma: People desire smaller government but resist cuts to programs that benefit them (e.g., student loans, veteran benefits).
Psychology of Individual
Classical Liberalism: Emphasizes duties (to self, family, community, state), particularly the duty to monitor and check government power (e.g., through lawsuits, protests).
Modern Liberalism: Emphasizes entitlements – what government owes individuals.
JFK's Call Back: John F. Kennedy's "Ask not what your country can do for you…" was a call back to classical liberal duties, trying to counter the growing entitlement mindset.
Equality Principle
Classical Liberalism: Focus on equal opportunity. Government acts as a "referee," ensuring fair rules and preventing cheating, but does not care about the outcome of the competition. Losers are expected to learn, work harder, or find a different path.
Modern Liberalism: Focus on equality of outcome. Government acts as a "scorekeeper," intervening to prevent excessively large disparities in outcomes, redistributing resources to ensure everyone "gets something out of it." Critics argue this "subsidizes mediocrity."
FDR's Legacy: Expanding Government Through the Declaration
FDR strategically used the authority of the Declaration to justify a significantly expanded government that implemented economic rights.
He argued that while the Declaration's principles remain, the challenges of a modern industrial economy require government to do things that were previously considered unconstitutional.
Martin Luther King Jr. and Social Equality
Context for the "I Have a Dream" Speech (August 28, 1963)
Location: Lincoln Memorial, chosen to link the Civil Rights Movement to Abraham Lincoln's legacy of political equality.
"Five score years ago": MLK deliberately echoed Lincoln's Gettysburg Address, marking years since the Emancipation Proclamation.
Unfulfilled Promises: Despite the Emancipation Proclamation and the 13th and 14th Amendments, true equality for black Americans had not been achieved. They experienced segregation ("separate but equal," upheld by Plessy v. Ferguson), poverty, and discrimination.
Rejection of "Gradualism": King explicitly rejected the idea that social equality would "occur organically over time," dismissing it as the "tranquilizing drug of gradualism." He asserted, "Now is the time" for immediate change.
MLK's Metaphors and Appeals
"Cash a Check": The Constitution and Declaration were a "promissory note" guaranteeing rights (life, liberty, pursuit of happiness) to all. Black Americans were trying to cash this check, but America was responding with "insufficient funds."
Target Audience: Primarily white America, to evoke anger and a sense of betrayal over unfulfilled promises, thus galvanizing support for the Civil Rights Movement.
Call to Action & Warning: King issued a forceful warning that if the nation returned to "business as usual," "there will be neither rest nor tranquility in America" until citizenship rights are granted. This implied continued non-violent protest and disruption.
Non-Violent Resistance: He cautioned black Americans against bitterness, hatred, and physical violence, emphasizing "dignity and discipline" and meeting "physical force with soul force." This was partly a strategic choice to maintain white support and implicitly contrast his methods with the rising militancy of figures like Malcolm X (who advocated retaliatory violence and black nationalism).
The Dream and the Goal
"When Will You Be Satisfied?": King articulated the ongoing grievances: police brutality, housing discrimination, lack of voting rights, and the psychological damage of segregation.
"Justice rolls down like waters": A biblical reference to a comprehensive, undeniable justice.
The American Dream: His dream was "deeply rooted in the American dream" – living out the true meaning of the creed that "all men are created equal."
Beyond Tolerance to Acceptance: King envisioned a future where individuals are judged by "the content of their character, not by the color of their skin." This implies a move beyond mere "tolerance" (putting up with differences without liking them) to full "acceptance" (supportive engagement, mutual respect, and genuine equality).
Contemporary Relevance: The debate between tolerance and acceptance continues today (e.g., the Trans movement), highlighting the ongoing struggle for social integration and equality.
The Articles of Confederation: A Flawed Experiment
Post-Revolutionary Challenges (1783-1787)
Exhausted Nation: The Revolutionary War left the young nation in debt and depleted of resources.
State Constitutions: Each former colony wrote its own constitution, establishing 13 independent republics.
Articles of Confederation (First National Government):
Weak Central Government: All substantive power resided with Congress.
Equal State Votes: Each state (regardless of size) had one vote in Congress.
No National Judiciary or Strong Executive: Practically no executive power, and no national court system.
Supermajority for Legislation: Important legislation (taxes, defense) required two-thirds vote.
Unanimity for Amendments: Amending the Articles required the consent of all 13 states.
Consequences of Weakness:
National Debt: Unable to levy taxes directly, the national government relied on states for funds, which were often withheld. This led to an inability to pay war debts to foreign creditors (France, Holland, Spain), risking national credit and potential foreign aggression.
Commerce Problems: Without national power to regulate commerce, states levied their own tariffs and trade barriers (protective tariffs), creating economic disunity and inefficiency. States competed for favorable trade deals, often at the expense of national economic interests.
Domestic Instability (Shays' Rebellion - 1786): In Massachusetts, armed farmers (led by Daniel Shays) rebelled against foreclosures due to high taxes, storming courthouses. Though small-scale, it highlighted the national government's inability to maintain order, signaling a potential collapse.
Call for a New Convention (1787)
Purpose: The Continental Congress authorized a convention in Annapolis, then Philadelphia, "for the sole and express purpose of revising the Articles of Confederation" and making the national government "adequate to the exigencies of the Union."
Violation of Mandate: The delegates in Philadelphia ultimately disregarded the "revising" mandate and created an entirely new system of government.
Rhode Island's Boycott: Rhode Island famously refused to send delegates, believing any changes would not pass muster, illustrating the impracticality of unanimous amendment.
The Constitutional Convention: Process and Personalities
Unique Historical Event: Unlike most constitutions, which arise from violence or immediate necessity, the US Constitution was crafted during a period of relative peace, allowing for reasoned debate and reflection.
Secrecy: All proceedings were kept secret to allow delegates to change their minds without public pressure and to prevent playing to the crowd. This fostered genuine deliberation based on "reasoned arguments" and a willingness to admit error.
Madison's Notes: James Madison meticulously recorded daily debates, arguments, and votes, which were kept secret until after the last living member's death, providing invaluable insight into the Convention's proceedings.
President of the Convention: George Washington served as the presiding officer. His presence (and the public's trust in him) lent legitimacy to the proceedings, reassuring the populace that nothing adverse to their rights would occur.
Washington's Influence: He rarely spoke but enforced decorum. His one substantive contribution was changing the House representation ratio from 1:40,000 to 1:30,000.
Key Figures (Examples)
James Madison: "Little Jimmy," primary author of the Virginia Plan, meticulous note-taker, deeply studied republics.
Gouverneur Morris: Pennsylvania delegate, contributed "We the People" to the Preamble, known for his peg leg and colorful personality.
Benjamin Franklin: Oldest delegate (), wise counsel, used prayer to calm heated debates.
Alexander Hamilton: New York delegate, strong advocate for national power. (Not present for the entire convention due to political duties).
Roger Sherman: Connecticut delegate, author of the Great Compromise.
James Wilson: Pennsylvania delegate, key in shaping the Electoral College and the presidency.
Elbridge Gerry: Massachusetts delegate, origin of "gerrymandering."
Diversity of Delegates: Despite being predominantly white men, delegates represented diverse economic backgrounds, educational levels, and social strata, leading to lively debate.
Competing Visions: Small Republic vs. National Government
Small Republic Advocates (Anti-Federalists)
Historical Model: Based on ancient republics like Sparta and Rome, and philosophers like Montesquieu.
Characteristics:
Small Populations & Territories: To allow for close-knit communities.
Homogeneity: People striving to be similar in opinions, interests, and virtues.
Direct Representation: Representatives directly reflect the will of the people without independent filtering.
Civic Virtue: Essential for people to prioritize the public good over private interests.
Simple Government: To ensure accountability and prevent public confusion (e.g., a single legislature).
Sentiment: Feared a powerful national government would lead to tyranny, believed only small republics could maintain liberty.
Sentinel No. 1: An example of an Anti-Federalist argument, warning that a large, complex government would perplex the people and lead to despotism.
Nationalists (Federalists) - James Madison's Argument (Federalist No. 10)
Critique of Small Republics: Madison argued that small republics historically failed due to internal "factions" (groups united by a common interest or passion "adverse to the rights of other citizens or to the permanent and aggregate interests of the community").
Factions Inherent in Human Nature: He contended that "the latent causes of faction are thus sown in the nature of man" due to diverse opinions, tastes, and preferences. Therefore, eliminating factions would require destroying liberty or making everyone think alike, both unacceptable.
Solution: Control the Effects of Faction: Since causes cannot be removed, the goal is to control their effects.
Cure for Faction (Two Pillars of a Republic):
Representation (Trustee Model):
Distinction: Unlike the "delegate model" (representatives simply execute constituents' immediate desires), the "trustee model" posits representatives as elected to act in the best long-term interest of the country.
"Refine and Enlarge": Representatives act as "filters" for public opinion, ideally producing "workable public policy" that is more consonant with the public good than if the people ruled directly. This separates the "cup of power from the lips of the people."
Safeguards: Legislative bodies (e.g., committee systems) can delay or block majority passions, allowing them to pass before implementation.
Large Size (Republic over Democracy):
Territory & Population: A large republic (vast territory, large population) makes it difficult for a majority faction to form, communicate, or act in concert due to geographical spread and diversity of interests.
Diversity (Ambition Counteracts Ambition): A multiplicity of diverse factions prevents any single one from gaining a majority. "Ambition must be made to counteract ambition."
Slow Diffusion of Passions: Majority passions cannot spread rapidly throughout a large territory, allowing time for reason to prevail or for passions to dissipate.
Madison's Redefinition of Republic: A republic is a government based on representation, focused on protecting individual rights and popular sovereignty.
Institutional Safeguards Against Factio (Federalist No. 51)
Addressing Skepticism: Federalist 51 builds on Federalist 10, recognizing that theoretical arguments alone might not convince a skeptical public.
Institutional Arrangements (Auxiliary Precautions): Madison proposed structural features within the Constitution to further check factional power.
Checks and Balances: Dividing power among legislative, executive, and judicial branches at the national level (horizontal separation of powers) ensures no single branch can become tyrannical.
Example: Bicameralism (House and Senate) ensures legislation must pass two different bodies. Presidential veto power can block Congress, which can then be overridden only by a two-thirds vote.
Written Constitution: Explicitly enumerates governmental powers, creating a clear boundary between authorized and unauthorized actions.
Federalism: Dividing power between the national government and state governments (vertical separation of powers) ensures multiple layers of protection for liberty.
Police Powers: States retain the "police powers" to protect the "health, morals, safety, and welfare of the citizens," giving them significant authority over everyday life.
Reliance on Self-Interest: Madison argued that these institutional arrangements work not by relying on civic virtue (which is unreliable) but by channeling human "ambition to counteract ambition." Each branch or level of government has a "personal motive" to resist encroachments by others, thus preserving the constitutional framework.
"If men were angels, no government would be necessary": A famous quote highlighting the pragmatic, rather than idealistic, basis of the American system.
Plans and Debates at the Constitutional Convention
The Virginia Plan (Large State Plan)
Introduction: Proposed by Edmund Randolph (though largely authored by James Madison) on May 17, 1787.
Core Idea: A strong, consolidated "national" union that could act directly on individuals.
Key Features:
Three Branches: Legislative, Executive, Judiciary.
Bicameral Legislature:
Lower House: Elected by the people, based on population.
Upper House (Senate): Nominated by lower house, elected by members, based on population.
Strong National Powers: Authority to legislate on issues where states were incompetent (e.g., commerce), and a national legislative veto over state laws.
Council of Revision: President and judiciary would review (and could strike down) legislation.
Small State Opposition: Strongly opposed by small states due to its population-based representation, which favored large states.
The New Jersey Plan (Small State Plan)
Introduction: Proposed by William Patterson on June 15, 1787, in response to the Virginia Plan's dominance.
Core Idea: Amend the Articles of Confederation, rather than replace them, to strengthen the central government while preserving state equality.
Key Features:
Unicameral Legislature: Each state retaining one vote (like the Articles).
Expanded Congressional Powers: Power to tax directly and regulate commerce.
Executive Council: A plural executive with power to compel state compliance.
National Laws Supreme: Federal laws would apply to states.
Weakness: It was a hastily prepared document, essentially a revised Articles, and struggled to gain support. Luther Martin's two-day, often inebriated, defense of the plan was notably ineffective.
The Hamilton Plan (Strategic Intervention)
Introduction: Alexander Hamilton presented his plan after the New Jersey Plan.
Core Idea: Adopt a system similar to the British government: an elected "King" (president for life), a two-house Parliament (Senate with members serving for life), and a court system.
Hamilton's Justification: Argued the British system was the best in the world for protecting rights. The problem in the Revolution was lack of colonial representation, not the system itself.
Strategic Purpose: Hamilton, knowing his plan would never be adopted due to anti-monarchical sentiment, used it to shift the "continuum of government power" debate. By proposing a very strong national government, he made the Virginia Plan seem like a moderate compromise, subtly pushing the overall convention towards a more powerful central government than initially contemplated by some.
The Great Compromise and the Electoral College (Key Debates)
The Three Major Debates
Slavery: (Already discussed: Three-Fifths Compromise, Importation Clause, Fugitive Slave Clause).
Large States vs. Small States (Representation):
The Great Compromise (Connecticut Compromise) - Roger Sherman:
House of Representatives: Proportional representation based on state population (pleasing large states).
Senate: Equal representation for each state (two senators per state, pleasing small states).
Consequence (Senate): This compromise led to the Senate becoming the most malapportioned legislative body globally (e.g., California senators representing million people, Delaware senators representing about each), later capped at 435 members in the House.
The Presidency (Electoral College):
Allocation of Electors: Each state receives electors equal to its total number of representatives in the House plus its two senators.
Voter Intent: Citizens vote for electors, not directly for presidential candidates. Electors were intended to be trustworthy, wise individuals making an informed choice (trustee model).
Electors' Votes (Original): Each elector cast two votes for president, with at least one for a candidate outside their home state. The candidate with the majority of electoral votes became president; the runner-up became vice president.
Problem: This system, designed without anticipating political parties, led to a president and vice president from opposing factions (e.g., John Adams and Thomas Jefferson in ).
12th Amendment (1804): Corrected this by separating the votes for president and vice president.
No Majority: If no candidate received a majority of electoral votes, the election was sent to the House of Representatives.
Small State Advantage in Runoff: In the House runoff, each state delegation cast one unit vote (regardless of population). This gave small states a disproportionate advantage in deciding the president, pacifying their concerns about large-state dominance in the initial electoral count. This miscalculation, however, rarely happened as intended due to the rise of political parties.
Ratification Process and the Bill of Rights
Debate Over Ratification
Requirement: Only three-quarters of the states (9 out of 13) were required for the Constitution to go into effect, not unanimity. However, each state had to ratify individually to be part of the Union.
Early Ratifiers: Small states like Delaware ratified quickly to gain the Union's protection.
Hotly Debated States: Large states like Pennsylvania, New York, and Virginia saw fierce debates.
Federalists vs. Anti-Federalists:
Federalists: Supported the Constitution (Hamilton, Madison, John Jay - writing as "Publius").
Anti-Federalists: Opposed it, fearing an overly powerful national government.
Anti-Federalist Concerns:
President as Monarch: Feared the president's potentially unlimited re-electoral terms.
Loss of State Sovereignty: Feared states would lose their authority (Federalists countered that sovereignty resided with the "people").
Supreme Court's Power: Worries about lifetime tenure for judges and undefined judicial powers.
Double Taxation: People couldn't afford taxes from both state and national governments.
Standing Army: Feared a standing army would oppress citizens.
Religious Freedom: Lack of specific safeguards for religious freedom.
The Crucial Missing Piece: A Bill of Rights
Initial Rejection: The Constitutional Convention unanimously voted against including a Bill of Rights.
Federalist Arguments (Federalist No. 84):
Experimentation: The Constitution was an experiment; a Bill of Rights could be added later if needed.
Unnecessary: States already had Bills of Rights, and most direct interaction with citizens happened at the state level (police powers).
Structural Protection: The Constitution's design (separation of powers, checks and balances, enumerated powers) inherently protected rights.
Dangerous: A written list of rights might imply that only those listed rights were protected, leaving others (like privacy) vulnerable. This was Hamilton's main point.
Madison's Role in the Bill of Rights
The Promise: Federalists, to secure ratification (especially in crucial states like New York and Virginia), promised to add a Bill of Rights as the first order of business in the new government.
Madison's Persistence: Despite Federalist enthusiasm waning post-ratification, James Madison, fulfilling his pledge, drafted 17 or 18 amendments (many from Virginia's state Bill of Rights).
Washington's Influence: Madison successfully lobbied George Washington, who, concerned about his reputation and Federalist promises, included a call for a Bill of Rights in his inaugural address.
Congressional Debate: Congress took up Madison's proposals, engaging in fierce debates, including over structural vs. individual rights amendments.
Compromise with Roger Sherman: Madison agreed to list the amendments at the end of the Constitution (as the Bill of Rights) rather than incorporating them into the original text, securing Sherman's support.
Key Eliminated Elements:
Preamble language from the Declaration of Independence (e.g., "all men are created equal") – removed due to Southern opposition.
Freedom of conscience (deemed redundant with freedom of speech and other protections).
Separation of powers as an explicit principle (deemed evident in the Constitution's structure).
Exemption from military service for religious pacifists (like Quakers) – later enacted as a statute.
Ratification of the Bill of Rights
Submission: 12 amendments were submitted to the states on September 28, 1789.
Ratification: 10 amendments were ratified by December 15, 1791, becoming the Bill of Rights.
Holdout States: Massachusetts, Connecticut, and Georgia initially did not ratify (Georgia, for example, due to a slow amendment process, only ratified in ).
Unratified Amendments:
Proposed a ratio system for representatives to constituents, to manage population growth.
27th Amendment (1992): An amendment proposed by Madison in , stating that congressional pay raises could not take effect until after a new Congress had been elected, was not ratified for over years. A student's paper in the 1980s reignited grassroots efforts, leading to its eventual ratification.
The Constitution and Economic Systems: Jefferson vs. Hamilton
What Kind of Economy? The Constitution did not explicitly define the economic system, leading to a major debate between Thomas Jefferson and Alexander Hamilton.
Jefferson's Agrarian Vision:
Yeoman Farmers: An economy built on small, self-sufficient farmers.
Virtuous Citizens: Farmers were seen as "the salt of the earth," promoting civic virtue, limiting government, and preventing mischief due to their demanding lifestyle.
Hamilton's Commercial/Industrial Vision:
Rich Nation: A diverse, industrial economy would make America a rich and powerful nation, capable of higher taxes and greater influence.
Material Wealth: People desire wealth; an agrarian system limits this.
No Permanent Classes: While there would be rich and poor, wealth would transfer rapidly, preventing rigid class systems like Europe.
Outlet for Ambition: A commercial economy provides an outlet for ambitious individuals who, if confined to politics, could become a source of "factions, riots, chaos, insurrections." They could instead pursue wealth, establish businesses, create jobs, and reinvest capital (trickle-down economics).
Legacy: While Jefferson's vision initially prevailed, in the long run, America became Hamilton's commercial-industrial republic.
Consent of the Governed: Tacit vs. Expressed
Declaration's Principle: All government is based on the "consent of the governed."
The Problem: How is consent measured and given in practice?
Jefferson's Expressed Consent:
Definition: Each citizen must explicitly consent to the Constitution and laws to be bound.
Practicality: Proposed that the Constitution have an expiration date (e.g., 17 years), requiring each generation to re-ratify it through a new constitutional convention. This gives every generation a voice.
Critique: Madison found this impractical and dangerous, as laws would lack stability and legitimacy if constantly expiring.
Madison's Tacit Consent:
Definition: Consent is implied by one's actions, particularly by choosing to remain a citizen.
Practicality: If you reside in the country and enjoy its benefits, you implicitly consent to its laws. If you don't consent, you are free to leave.
Critique: David Hume argued this was coercive, like being on a tyrannical boat and told to "jump off" if unhappy. For many, leaving the country is not a realistic option, making consent involuntary.
Vietnam War Context: The debate resurfaced during the Vietnam War, with draftees facing the choice of tacit consent (serve) or expressed dissent (flee to Canada).
Federalism: Dividing Power Vertically
Definition:
Original: Federalism referred to a contract between different sovereign governments, like the Articles of Confederation (a "federal system").
Madison's Redefinition (Federalist No. 39): A "compound Republic" – a national government with federal features. The Constitution is "neither wholly national nor wholly federal, mix of both."
National: Derived from the people.
Federal: Derived from the states.
Modern: Division of power between national and state/local governments.
Supremacy Clause: Federal law trumps state law.
Sovereignty: Resides with the people, who can allocate power as they choose, not with the states or the national government.
Madison's Analysis of Constitutional Features (Federalist No. 39):
Founding (Ratification): Primarily federal (ratified by states, requiring supermajorities, not just popular vote).
Source of Ordinary Powers (Institutions):
House: National (elected by the people).
Senate: Federal (elected by state legislatures).
President: Mixed Character (popular vote indirectly through Electoral College, but state units crucial in House runoff).
Operation of Government: Primarily national (acts directly on individuals, not just states).
Extent of Powers: Not wholly national but limited by enumeration of powers (government only acts on powers explicitly listed in the Constitution).
Amendment Process: Mixed character (requiring two-thirds vote in Congress and three-quarters of state ratification).
Safeguards for States (Federalist Papers)
Legal Defense: Constitution explicitly allocates powers between national and state governments. States can appeal to the Constitution itself.
Institutional Defense: States are represented in the national government, particularly by the Senate (whose members were originally elected by state legislatures and had a duty to protect state interests).
Lack of Recall: Unlike the Articles, the Constitution did not include a recall provision for senators, meaning states had to wait six years to remove a disobedient senator.
Political Defense: States have an inherent interest in protecting their power, and citizens' loyalties are often primarily to their states.
Erosion of Federalism in the 20th Century
Legal Defense Weakened:
14th Amendment: Drastically expanded national power by incorporating most of the Bill of Rights against state action (e.g., Gitlow v. New York () for free speech, Chicago v. McDonald () for Second Amendment).
Loose Interpretation of Enumerated Powers: Necessary and Proper Clause broadly interpreted (e.g., Hamilton's national bank, despite Jefferson's strong opposition).
Institutional Defense Weakened:
17th Amendment (1913): Shifted election of senators from state legislatures to direct popular vote, transforming the Senate from a federal (state-representing) institution to a national (people-representing) one.
16th Amendment (1913): Enabled federal income tax, giving the national government an independent and vast source of revenue, reducing its financial reliance on states.
Bribery/Extortion (Conditional Grants): The national government co-opts state police powers by offering block grants tied to compliance with federal policy goals (e.g., raising the drinking age to 21 for highway funds, minimum seat belt laws).
Case For and Against Federalism
The Case FOR Federalism:
Liberty: Decentralized power prevents tyranny at any single level.
Popular Accountability: Local governments are closer to the people, increasing voter engagement and accountability (e.g., local school boards, mayors).
Diversity in Public Policy: Allows states and localities to tailor solutions to specific local problems (e.g., education, crime reduction) rather than a "one size fits all" national approach.
Innovation (Laboratories of Democracy): States can experiment with different policies (e.g., welfare reform, education reform), allowing successful models to be adopted nationally.
National Effectiveness: Prevents the national government from becoming overloaded and performing poorly (e.g., Trump's critiques of the Department of Education).
Civic Virtue: Localized politics increase the stakes for citizens, encouraging greater participation and attention.
The Case AGAINST Federalism:
Tyranny of Majority (States Susceptible): Smaller states/localities are more prone to majority factions and injustice than the national level (e.g., historical segregation and civil rights abuses at state/local level, requiring federal intervention like Brown v. Board of Education and the Civil Rights Act of ).
Lack of Equality: Creates a "myriad of different state and local ordinances," leading to unequal rights and treatment across states (e.g., marijuana laws, speeding laws, gun transport laws). Ignorance of complex state laws is no excuse.
Lack of Competence: Early founders argued national government would attract higher quality public servants due to prestige and broader scope, implying lesser competence at the state level (though this is debatable today).
Interconnected Problems: Few truly local or state-only problems remain due to mass communication and technology; most issues (e.g., gas prices affected by hurricanes) are national in impact.
Policy Activism Facilitated: Easier to enact nationwide public policy change at the national level (one law for all) than to convince 50 separate state legislatures.
National Unity Threatened: Lingering fear from the Civil War that too much state power could lead to disunity, secession, or regional conflicts (e.g., Texas secession movements).
The Commerce Clause: A Threat to Federalism
Original Consensus: At the founding, the Commerce Clause (giving Congress power to regulate interstate commerce) was largely uncontroversial; everyone agreed the national government needed this power due to state failures.
Modern Expansion: Over time, the Commerce Clause became the primary justification for the national government to regulate new areas, encroaching on traditional state powers.
Key Supreme Court Cases (Early 20th Century): These cases established distinctions to limit federal power under the Commerce Clause.
U.S. v. E.C. Knight Co. ():
Context: Congress used the Sherman Antitrust Act to break up a sugar refining monopoly (EC Knight Co.) that controlled of the market.
Court's Distinction: Established a "three-part test" differentiating between:
Production/Manufacturing (State Power): Activities like mining and refining were considered production, regulated by states.
Commerce (National Power): Activities like trading, selling, or moving goods across state lines (interstate) were commerce, regulated by the national government.
Direct vs. Indirect Effects: (This part was convoluted and rarely effectively applied).
Ruling: Sugar refining was production. Therefore, Congress could not use the Commerce Clause to regulate EC Knight Co. within a state, nor break up its monopoly.
Hammer v. Dagenhart ():
Context: Congress passed the Federal Child Labor Act of , prohibiting goods manufactured by child labor from entering interstate commerce for 30 days, effectively increasing the cost of business for child labor.
Court's Distinction: Reaffirmed the distinction between manufacturing (state power) and commerce (national power).
"Harmful Goods" Argument Rejected: The government argued child-made goods were "harmful goods." The Court rejected this, stating the product itself (e.g., a chair) was not inherently harmful; the harm was in the method of production (child labor), which was a state regulatory issue.
Ruling: Congress could not use the Commerce Clause to regulate child labor within states, as this was manufacturing, not commerce. (The case's namesake, Dagenhart, was a father suing to preserve his right to send his sons to work in a textile mill).
Continued Debate: The debate over federalism (centralized vs. decentralized power) and the scope of the Commerce Clause continues today, with arguments made for both increasing state power and consolidating more power at the national level.