Flashcards for POL 211: American Government and Politics
MIDTERM NOTES - ABBREVIATED OUTLINE
Slavery and the Constitution
The Glaring Exception in the Founding
The ratification of the Declaration of Independence (committed to "all men are created equal") directly contradicted the toleration of slavery.
Jefferson's Stance: He included an accusation against the King for refusing colonial efforts to legislate against the slave trade in the Declaration, indicating awareness of slavery's immorality.
Practical Problem of Abolition: If slavery were immediately abolished, a large population of uneducated and untrained black slaves, entirely dependent on white overseers, would face chaos and have no means of support.
Government Services at the Founding: Direct welfare benefits or government services to assist a newly freed population did not exist at the federal level at the time of the founding, only some state-level benefits.
Founders' Original Outlook on Slavery
Many founders intended to eradicate slavery and held an (perhaps unrealistic) goal that it would die out in a couple of generations.
Reasons for this belief (pre-cotton gin):
Lack of Profitability: Slavery was considered an inefficient economic system. Most Southern farmers were subsistence farmers, not getting rich from crops like wheat, corn, sugar, and tobacco (tobacco being the most profitable).
Hope for More Efficient Labor Systems: The expectation was that if a more efficient labor system could be devised, Southerners would abandon slavery.
Constitutional Convention and Slavery Compromises
Southern Demands: Charles Pinckney of South Carolina stated that there would be no Constitution unless slavery was protected, reflecting widespread Southern sentiment.
Dilemma for Framers: Eliminating slavery would lead slave states to refuse ratification, potentially forming their own countries or aligning with European powers (Spain, France, England), making the American constitutional system unworkable or significantly smaller.
Necessity of Compromise: To form a nation and ratify the Constitution, compromises on slavery were deemed necessary.
Three Major Slavery Compromises:
Three-Fifths Compromise:
Purpose: Counted slaves as three-fifths of a person for purposes of both representation in the House of Representatives and taxation.
Southern Preference: Southerners wanted to count slaves as full persons to increase their representation in the House and Electoral College.
Northern Opposition: Northerners opposed counting slaves as full persons for representation without commensurate responsibilities.
Anti-Slavery Interpretation: This could be seen as an anti-slavery incentive mechanism. States emancipating slaves would see them count as whole persons for representation, increasing political power and reducing the "property" tax burden.
Importation Clause (Transatlantic Slave Trade):
Provision: Congress could not prohibit or end the importation of slaves until (20 years from the Constitution's ratification).
Anti-Slavery Interpretation: This set an end date for the external supply of slaves, aiming to put slavery on a path to disintegration by making it too expensive to replenish the labor supply (demand rising, supply limited).
Economic Context: By , the existing slave population was largely self-sustaining.
Free Labor Replacement Theory: The founders hoped that by , free labor would replace slave labor due to its greater efficiency.
Benefits of Free Labor:
Financial Stimulus: Laborers earn wages, buy goods, and stimulate the economy.
Reduced Overhead: Employers don't pay for healthcare, lodging, food, or upkeep.
Negotiated Wages: Laborers can negotiate contracts, forcing plantation owners to offer competitive wages.
Higher Productivity: Free laborers work willingly with built-in incentives (e.g., extra pay for extra production), leading to higher output.
Reduced Oversight: Fewer overseers needed as workers are self-motivated.
Land Scarcity in East: Large families in the East faced land shortages, pushing for westward expansion or becoming free laborers.
Fugitive Slave Clause:
Provision: Required that if a slave escaped into a free state, they had to be returned to their owner.
Ambiguity: The Constitution did not specify who was responsible for returning runaway slaves (federal government, state governments, or slave owners).
Consequences: This ambiguity created significant conflict over the next 40 years as Northern states increasingly denied the efficacy of the clause, leading Southerners to perceive constitutional violations.
Constitutional Language for Slaves: The Constitution avoids the word "slavery," referring to slaves as "persons." This recognition of slaves as "people" overtly creates a contradiction with their status as property, hinting at future potential for rights.
Southern Defense of Slavery (Early Republic): Southerners generally viewed slavery as a "necessary evil," acknowledging its immorality but claiming its necessity for the Southern economy and referencing historical reliance on slavery in other founding regimes (Rome, Greece).
Slavery in America vs. Other Places: Slavery in America was qualitatively different: intimately tied to race (making the abolition of slavery inextricably linked to combating racism), and children of slaves remained slaves (unlike Rome where they might be free citizens).
Frederick Douglass's View: Viewed slavery in the Constitution as "scaffolding on a building"—ugly but temporary, expecting it to be deconstructed.
Factors Leading to Slavery's Entrenchment (Instead of Decline)
Plausibility of Initial Beliefs: In , it was reasonable to believe slavery was in decline due to inefficiency and land scarcity.
Utopian Solutions: Ideas like creating Liberia (a country in Africa for former slaves) were impractical due to the scale of the operation.
The Cotton Gin (Early 1800s):
Cotton Profitability: Southern soil proved ideal for high-quality cotton production.
Industrial Revolution in England: England's textile mills created a massive demand for raw cotton, willing to pay premium prices.
Economic Transformation: Cotton became a highly profitable cash crop, not just for subsistence. By , the return on cotton equaled all other domestic farm products combined.
Affordable Inefficiency: Slavery, though still inefficient, became an inefficiency the South could afford due to immense profits (Ferrari analogy).
Louisiana Purchase (Jefferson's Role):
Massive Land Expansion: More than doubled the size of the United States, opening vast fertile lands west of the Mississippi.
New Opportunities: Solved the land scarcity problem, allowing farmers' sons to go west instead of becoming free laborers.
Lack of Pressure to Transition: Removed the economic pressure for Southerners to shift from slave labor to free labor.
Resistance to Change: Deeply entrenched economic systems (200-300 years) are difficult to change, especially when assumptions about human nature (rationality) are flawed.
Missouri Compromise (1820): Drew a line across the country, allowing states above to be free and states below to be slave, intensifying the debate over new territories.
Jefferson's Alarm: Jefferson called the Missouri Compromise a "fire bell in the night," warning of its potential to ignite nationwide conflict over slavery, comparing it to holding a "wolf by the tail."
Haitian Revolution and Slave Uprisings:
Haitian Revolution (Slave Revolt): Slaves in Haiti brutally murdered white populations, causing widespread fear in the American South of a "race war" if slaves were liberated without sufficient means of support.
Northern and Southern Views on Slavery (Mid-19th Century)
Northern Public Opinion on Slavery:
Complexity: Not simply a clear-cut desire to end slavery.
Racial Integration Concerns: Many Northerners were uncomfortable with an integrated society and saw Southern blacks as competition for scarce jobs if freed.
Racism: Anti-slavery sentiment in the North did not equate to a lack of racism. Northerners often opposed holding blacks as property but were not enthusiastic about black migration, integration in neighborhoods, schools, or churches.
Reluctance on Solutions: While quick to condemn slavery as wrong, Northerners became uncomfortable when discussing practical solutions.
Transformation of Southern Stance on Slavery:
Shift from "Necessary Evil" to "Positive Good": Intellectual currents in the South evolved from viewing slavery as an immoral but necessary evil to a "positive good" beneficial for both whites and blacks.
Economic Justification: Slavery was considered essential for the Southern economy, particularly cotton production.
Theological Justification: Southern preachers cited Old Testament passages seemingly tolerating slavery, fueling a "theological war" with Northern abolitionists who cited other biblical passages.
Racial Superiority: Slavery fostered a mindset of white racial superiority, making its abolition and the eradication of racism more challenging.
Southern Social Science (Ethnology): The emerging field of sociology (practiced as ethnology) produced "research" purporting to show black intellectual inferiority based on skull size, reinforcing racist prejudices and cultural norms. These biased studies were eagerly published and consumed as confirmation bias.
Abolitionist Movement (1830s onward)
William Lloyd Garrison: A prominent anti-slavery advocate who published "The Liberator" and founded the abolitionist movement.
Immediate Abolition: Abolitionists demanded immediate abolition, rejecting gradualism.
Declaration of Independence as Basis: Their arguments largely stemmed from the Declaration's principles of "all men are created equal" and endowed with natural rights.
Higher Law: For Garrison, the Declaration was divinely inspired ("God's law"). Any law or constitutional provision contrary to it was "null and void" and lacked legitimacy.
Condemnation of the Constitution: Garrison famously denounced the Constitution as an "evil document" due to its slavery compromises, symbolically ripping copies of it in public speeches.
Conflict with Church and State: Garrison's view of a "higher law" informing all societal rules, including the Constitution, could be problematic for strict separation of church and state, but he believed God's law dictated ultimate validity.
Stephen Douglas and Popular Sovereignty
Prominent Politician of the 1850s: Architect of the Compromise of and the Kansas-Nebraska Act ().
Lincoln-Douglas Debates (1858): A series of seven extremely well-attended debates for an Illinois Senate seat, elevating Lincoln to national prominence.
Douglas's Argument against Lincoln: Douglas characterized Lincoln as an abolitionist who believed the Declaration included "Negroes" in its equality clause, a position Douglas rejected.
Declaration's Scope (Douglas's View): Douglas asserted the Declaration was intended only for "men of European birth or descent" (white men), not Indians or Negroes. His proof: if the Founders truly believed in universal equality, they would have abolished slavery immediately.
Historical Context (Counter-argument): This view overlooks the political reality and compromises necessary for the Constitution's ratification, showing a simplistic understanding of the Founders' dilemma (slavery vs. disunion).
Popular Sovereignty:
Principle: In a republic, the people should rule; their voice is the ultimate authority.
Application to Slavery: Douglas believed decisions about slavery should be made by the people of each state through a popular vote, not by the national government.
State Sovereignty: Each state is sovereign and cannot impose its morals, values, or laws on another state (e.g., Massachusetts banning slavery does not dictate Georgia's policy).
Territorial Application: Douglas proposed that people in new territories should vote on whether to be free or slave states.
Democratic Appeal: This approach appears democratic, as it upholds the idea of majority rule at the state level.
Criticisms:
Moral Questions: Is it appropriate to resolve fundamental moral questions (like slavery) by popular vote, especially when the disenfranchised cannot participate?
Practical Consequences: Led to conflicts like "Bleeding Kansas" and ultimately the Civil War.
Modern Analogy (Dobbs Decision): The Supreme Court's Dobbs decision (abortion) similarly returned the issue to individual states, reflecting a lack of national consensus.
Lincoln's Rebuttal to Popular Sovereignty:
Slavery as a Moral Absolute: "If slavery isn't wrong, then nothing is wrong."
Fundamental Principles: Equality and natural rights are not subject to legislation or popular vote. The Declaration secures these things as inherent to all citizens, irrespective of state decisions.
John C. Calhoun and the Attack on the Declaration
Outlier on Pro-Slavery Side: Calhoun launched a full assault on the Declaration of Independence.
"Hypothetical Truism": Calhoun argued that the Declaration's proposition that "all men are born free and equal" is a "hypothetical truism"—a truth based on a mere supposition that cannot exist and has no practical value.
"Men are not born, infants are born": He literally attacked the wording, arguing infants are incapable of freedom and necessarily subject to parents.
"Not born free and equal": Infants lack capacity for thinking and acting (freedom) and are born into inherent inequalities (e.g., dependence on parents).
Critique of State of Nature:
No Historical Evidence: Anthropology and archaeology offer no proof of humans ever existing in an isolated "state of nature"; humans have always existed in social groups.
Impracticality for Survival: In a state of nature, basic human survival, especially reproduction and child-rearing, would be impossible (e.g., pregnant women vulnerable, mothers abandoning infants for self-preservation).
Consequence: If the state of nature is hypothetical, then derived concepts like natural equality and natural rights are also hypothetical.
Human Condition: Calhoun posited three fundamental conditions for man:
Individual (State of Nature): Man living alone (hypothetical).
Social: Man living in groups, but still needing laws and institutions.
Political: Man living under government, which is the only natural state.
Political Determination of Equality: For Calhoun, if men are "created equal," it is because a political community decided to make them equal through laws, ordinances, and values, not because of inherent natural equality.
Implications for the Declaration: The Declaration, for Calhoun, was merely a successful breakup letter from Britain, with its natural rights principles having no lasting meaning or binding authority for American political organization. It did not dictate how American society should be organized or which form of government should exist beyond breaking from tyranny.
Relativism: Calhoun's political science is founded on relativism, arguing that morals, values, and ethics are relative to time, place, and circumstance, with no one set of values being universally superior.
Two Political Communities: Calhoun argued that America comprised two distinct political communities: the North (adhering to Declaration principles) and the South (devoted to repudiating them and believing in inequality).
Inherent Conflict: This fundamental disagreement meant the nation could not hold together and Civil War was inevitable.
Southern Basis for Confederacy: Alexander Stephens (VP of Confederacy) stated that inequality was the cornerstone of the Confederacy.
Abraham Lincoln: Preservation of the Union and a New Birth of Freedom
Reply to Calhoun: Lincoln sought to save the "principles of Jefferson from total overthrow."
Axioms of Free Society: Lincoln aligned Jefferson's principles with mathematical axioms, arguing that denying them prevents any rational discussion of free society.
Targets of Critique: Lincoln identified "glittering generalities" (Rufus Choate), "self-evident lies" (Calhoun), and application "only to superior races" (Douglas) as attacks on the Declaration.
The Gettysburg Address (November 19, 1863)
Context: Delivered at the dedication of a national cemetery on the battlefield of Gettysburg, a pivotal Union victory.
Myth: Not written on a train; Lincoln had drafts seven months prior.
Opening Line (Four score and seven years ago): References and the Declaration of Independence as the founding moment, not the Constitution.
Central Axiom: Changes Jefferson's "all men are created equal" to "conceived in Liberty" and "dedicated to the proposition that all men are created equal."
Significance of "Conceived in Liberty": Axiomatic because naturally, no infant is born with a natural right to rule over another (challenges divine right of kings).
Equality as a Proposition: Equality is an ongoing process derived from liberty, requiring continuous dedication and reinforcement by each generation.
Key Word: "Dedicated": Lincoln repeatedly uses "dedicated" to emphasize the ongoing commitment required from the living to uphold the nation's founding principles, particularly equality.
Purpose of the War: The war tests whether a nation "so conceived and so dedicated can long endure," reinforcing the philosophical battle for ideas along with the physical one.
"New Birth of Freedom": The war aims to achieve a "new birth of freedom" for the country, where government and people are devoted to equality.
Legacy: Though short (272 words vs. Edward Everett's 13,607-word oration), its profound message established it as one of the greatest speeches in American history.
The Second Inaugural Address (March 4, 1865)
Context: Delivered near the end of the Civil War (April 9, Lee's surrender).
Reply to Stephen Douglas: Addresses the deep moral questions surrounding slavery and the war.
Audience: "Fellow countrymen"—a unifying address to all Americans, North and South.
War's Unpredictability: Lincoln acknowledges high hopes but offers no prediction of the war's end, suggesting divine will is at play.
"And the war came": Emphasizes the inevitability of the conflict, despite universal desires to avoid it.
Cause of the War: Explicitly states slavery as the sole "peculiar and powerful interest" causing the war, dismissing states' rights and other arguments.
God's Judgment:
Neither Side Fully Right: Both North and South read the same Bible and prayed to the same God, yet God did not fully answer either's prayers because both were complicit in the sin of slavery.
Divine Punishment: The war is God's punishment for slavery, the "woe" upon those by whom the offense came. "Every drop of blood drawn with the lash shall be paid by another drawn with the sword." This explains the war's duration and magnitude.
Lincoln's Indifference to Outcome: If the war is God's judgment, Lincoln cannot predict its end, as it depends on God's will until the sin is absolved.
Spirit of Reconstruction:
"With malice towards none, with charity for all": Calls for a lenient and unifying approach to Reconstruction, against the Northern desire for vengeance.
Common Ground: Acknowledges mutual guilt in slavery, offering a basis for shared healing rather than retribution.
Practicality: Vengeance would prolong conflict and make reincorporation difficult, as the federal government was not large enough to enforce prolonged occupation.
Scriptural Quotations: Lincoln liberally quotes scripture (4 direct, 2 paraphrased), unprecedented for a president at the time, using it to frame the war as a moral reckoning.
Reconstruction Amendments (Lincoln's Support): Lincoln supported Black suffrage and would have likely approved the 13th, 14th, and 15th Amendments.
13th Amendment: Abolished slavery and involuntary servitude.
The Economic System and Consent
The Economy: Jefferson vs. Hamilton
Long-standing Debate: What economic system is most compatible with the Constitution?
Jefferson (Agrarian Economic System):
Foundation: Yeoman farmers/small farmers working the land.
Benefits: Widespread land ownership, food security, self-sufficiency.
Civic Virtue: Farming fosters civic virtue due to self-sufficiency and lack of leisure time for "mischief."
Limited Government: Self-sufficient farmers require less government assistance, maintaining limited government.
Hamilton (Commercial/Industrial Republic):
Foundation: Diverse economic system with various professions (bankers, financiers, traders).
Benefits: Wealthier nation, material prosperity.
Wealth Mobility: Wealth transfers rapidly, preventing permanent rich/poor classes (unlike European class systems).
Outlet for Ambition: Provides a non-political channel for ambitious individuals to pursue wealth, diverting them from potentially destabilizing political power struggles (factions, riots, insurrections).
Critique of Political Ambition: Even the presidency cannot satisfy the highly ambitious, as constitutional checks and balances limit direct power.
Economic Ambition's Benefit: Pursuit of wealth drives new corporations, factories, businesses, creating jobs and raising wages (trickle-down effect).
Outcome: Jefferson's agrarian vision dominated the early Republic, but the 19th century saw industrialization. Ultimately, modern America largely reflects Hamilton's commercial vision.
Consent of the Governed
Declaration's Principle: All government derives from the consent of the governed.
Jefferson (Expressed Consent):
Definition: Each citizen must explicitly consent to the Constitution and laws to be bound.
Practical Application: Proposed a constitutional convention every years (generational consent) to allow each generation to ratify or amend the Constitution.
Critique: Impractical, creates instability, undermines respect for law, and could lead to continuous legal upheaval.
Madison (Tacit Consent):
Definition: Implied consent given by remaining within the jurisdiction of the government and enjoying its benefits.
Choice: Citizens have two choices: consent to laws and institutions by being a U.S. citizen, or if unhappy, leave the country.
Critique: Unrealistic in practice for most people due to logistical and financial barriers to emigration (David Hume's "tyrannical boat captain" analogy).
Historical Echoes: This debate resurfaced during the Vietnam War regarding draft resistance.
FDR and Modern Liberalism: The Economic Bill of Rights
Context: Great Depression (1930s): Widespread economic crisis, high unemployment.
FDR's Response (New Deal): Aggressive government intervention, expanding federal control over the economy (banks, spending, employment). Characterized as emergency measures, not permanent shifts.
State of the Union Message (1944): FDR linked traditional "political rights" (life and liberty) from the Declaration to a need for new "economic rights" to ensure "equality in the pursuit of happiness."
Second Bill of Rights (Economic Bill of Rights): Proposed a new set of rights necessary for individual freedom and economic security, regardless of race or creed.
Transition from Negative to Positive Rights:
Negative Rights (Classical Liberalism): Protect individuals from government (e.g., freedom of speech, religion, from unreasonable searches). Bill of Rights primarily contains negative rights.
Positive Rights (Modern Liberalism): Require the assistance of government for individuals to exercise them (e.g., minimum wage, decent home, medical care, education, social security).
Examples of Proposed Economic Rights:
Right to a useful and remunerative job (minimum wage).
Right to earn enough for adequate food, clothing, and recreation (government subsistence/welfare).
Right of farmers to raise and sell products for a decent living (farm subsidies).
Right to adequate medical care and good health (universal healthcare).
Right to protection from economic fears of old age, sickness, accident, and unemployment (Social Security).
Right to a good education (public education systems, college access).
Challenges of Implementation: Defining "adequate" or "good" for these rights is subjective and complex (e.g., ketchup as a vegetable, varied clothing needs, personal recreation choices).
Government Intervention: Many of these rights are now enacted through statutory law, often involving government spending and intervention (e.g., food stamps, Obamacare).
Classical Liberalism vs. Modern Liberalism:
Classical Liberalism (lowercase 'l'): John Locke, Adam Smith, Montesquieu. "Government which governs best, governs least."
Size: Limited government.
Psychology: Emphasizes duties of citizens (to self, family, community, government oversight).
Equality: Equal opportunity. Government acts as a referee, ensuring fair rules but not guaranteeing outcomes.
Modern Liberalism (uppercase 'L'): FDR onwards.
Size: Welfare state; larger government providing public welfare.
Psychology: Emphasizes entitlements—what government owes citizens.
Equality: Equal outcome. Government acts as a scorekeeper, intervening to reduce disparities in outcomes.
Criticism: Can subsidize mediocrity and discourage individual effort.
Martin Luther King Jr. and Social Equality
Connection to Lincoln: MLK's "I Have a Dream" speech was delivered at the Lincoln Memorial, directly referencing Lincoln's Emancipation Proclamation and efforts for political equality.
Focus on Social Equality: MLK broadened the concept of equality to include social equality, aiming to dismantle segregation and discrimination.
"Five score years ago": A direct echo of Lincoln's Gettysburg Address, underscoring the unmet promises of freedom and equality for African Americans.
Unfulfilled Promise: Despite the Emancipation Proclamation, 13th, and 14th Amendments, years later, Negroes remained "not free," crippled by segregation and discrimination, living in poverty and "exile in his own land."
Critique of Gradualism: Rejects the idea of waiting for social equality to evolve organically (challenged Booker T. Washington's approach).
"Fierce Urgency of Now": Demanded immediate action to fulfill the "promises of democracy" and achieve racial justice.
"Cash a Check" Metaphor: The Constitution and Declaration were a "promissory note" guaranteeing unalienable rights to all men. However, America had issued a "bad check" to its black citizens, returning "insufficient funds" when they sought their rights.
Audience: Addressed both white and black America.
To White America: A warning that refusing justice would lead to continued social unrest ("whirlwinds of revolt").
To Black America: A call for continued non-violent resistance, cautioning against bitterness, hatred, and physical violence (distancing from movements like Malcolm X's black nationalism).
The Dream: A vision rooted in the American Dream and the Declaration's creed of equality.
Desire for Integration: Former slaves and slave owners' sons sitting together at the "table of brotherhood."
Character over Color: Children judged by "content of their character, not by the color of their skin."
Tolerance vs. Acceptance:
Tolerance: Allowing others to exist despite disagreement ("I don't like it, but I'll put up with it"; leaving each other alone).
Acceptance: Support and engagement with differing beliefs, choosing people based on character.
MLK's Goal: Move beyond mere tolerance towards full acceptance and brotherhood.
Progress: While social equality remains a challenge, there has been notable progress (e.g., interracial dating, sports, military).
The Constitutional Convention: From Articles to a New Government
Post-Revolutionary War: The nation was exhausted, in debt, and fragmented into 13 quasi-independent states.
Articles of Confederation (1781-1789):
Weak National Government: All power resided in a unicameral Congress; virtually no executive and no judiciary.
State Power: States retained significant autonomy and sovereignty.
Decision-Making: Important legislation (taxes, defense) required a two-thirds vote; amendments required unanimous consent of all 13 states, making it nearly impossible to act effectively.
Problems:
National Debt: Government couldn't levy taxes, relying on unreliable state contributions, leading to inability to pay foreign debts and a plummeting credit rating.
Commerce Regulation: States levied their own tariffs and trade barriers, creating economic competition and disunity instead of a unified national market. Protective tariffs aimed to bolster local industries but often led to retaliatory measures.
Domestic Unrest (Shays' Rebellion, 1786-87): Massachusetts farmers (led by Daniel Shays) rebelled against foreclosures, storming courthouses. Though small-scale, it highlighted the national government's inability to maintain order and hinted at potential collapse.
Constitutional Convention (May 1787, Philadelphia):
Mandate: Called by Continental Congress solely to revise the Articles of Confederation and address "exigencies of the Union."
Framers' Action: Instead, they created an entirely new system of government, exceeding their explicit mandate but justified by the need to address the Union's "exigencies."
Unique Context: Occurred during a time of peace, allowing for deliberation, reason, and compromise, unlike most constitutions born out of violence.
Atmosphere:
Secrecy: All proceedings kept secret to foster open debate, allow delegates to change their minds without public pressure, and avoid political inconsistencies (prevents "flip-flopping"). James Madison meticulously recorded daily notes, published only after the last delegate's death (his own).
Leadership (George Washington): Reluctantly accepted role as presiding officer. His presence lent immense legitimacy and trust to the proceedings, ensuring decorum and calming heated debates (his implicit authority).
Diversity of Delegates: 55 attendees (out of 70 appointed) from various backgrounds (economic, educational), representing different social strata, though primarily white men.
Key Figures: James Madison (Father of the Constitution), Gouverneur Morris (drafted the Constitution, known for theatrics, lost leg in accident), Alexander Hamilton (advocated strong central government, died in duel), Roger Sherman (authored the Great Compromise, 15 children), James Wilson (key in Electoral College, presidency), Elbridge Gerry (gerrymandering), Benjamin Franklin (most famous, avid swimmer).
Absentees: Thomas Jefferson (Ambassador to France), John Adams (Ambassador to Britain), Sam Adams, John Hancock, Patrick Henry (feared a "rat" in Philadelphia).
Key Plans and Debates
Virginia Plan (Large State Plan): Proposed by Edmund Randolph (authored by James Madison)
Strong National Government: Consolidated union, acting directly on individuals.
Three Branches: Legislative, Executive, Judiciary.
Bicameral Legislature:
Lower House: Elected by the people, proportional representation by population.
Upper House: Nominated by lower house, indirectly elected, proportional representation.
National Legislative Veto: Congress could veto state laws contrary to federal Constitution.
Council of Revision: President and judiciary could review and strike down legislation.
President: Elected by Congress (initial Virginia Plan).
Reception: Shocked Small State advocates, who viewed it as a complete overhaul, not an amendment, but became the basis for early debates.
New Jersey Plan (Small State Plan): Proposed by William Patterson
Amendments to Articles: Sought to strengthen Congress without fundamentally changing its structure.
Unicameral Legislature: Equal representation for states (one vote per state).
Congress Powers: Power to raise money directly (taxes) and regulate commerce.
Executive Council: Multiple executives with power to compel state compliance (via force).
Judiciary: Added a national judiciary.
Reception: Rushed, widely seen as inadequate. Luther Martin's tedious defense did not help its cause.
Hamilton Plan (Extreme National Plan):
British System: Proposed adopting the British system of government (elected monarch, bicameral parliament, judiciary) with modifications for American context.
Argument: British system was most effective in protecting rights. Colonists' issue was taxation without representation, which could be solved domestically.
Strategic Purpose: Likely introduced as an extreme pole to make the Virginia Plan seem like a reasonable compromise, pushing the overall debate towards a stronger national government.
Three Major Debates at the Convention
Slavery: (See above for Compromises: Three-Fifths, Importation Clause, Fugitive Slave Clause).
Big States vs. Small States (Representation):
Core Conflict: Small states demanded equal representation; large states demanded proportional representation.
Great Compromise (Connecticut Compromise, Roger Sherman):
House of Representatives: Proportional representation by population (favoring large states).
Senate: Equal representation for each state (two senators per state, favoring small states).
Consequence: The Senate remains the most malapportioned legislative body globally (e.g., California senators representing 25 million people vs. Delaware senators representing 500,000).
Electoral College (James Wilson):
Electors: Each state receives electors equal to its total number of representatives in the House plus its two senators.
Original Intention: Electors (chosen by the people) were meant to be trustworthy, experienced, and wise trustees, making informed choices for president and vice president on behalf of uninformed citizens (to prevent direct popular vote choosing unknown candidates).
Voting: Each elector initially cast two votes for president; one had to be for a non-resident of their state (to combat local favoritism).
Outcome: Candidate with majority electoral votes wins. Second-place becomes Vice President (e.g., Adams-Jefferson in ).
Flaw: Did not account for the rise of political parties, which quickly undermined the trustee model by binding electors to party candidates.
House Runoff: If no majority in Electoral College, election goes to the House of Representatives, where each state delegation gets one vote, giving small states disproportionate power in such scenarios.
12th Amendment: Modified the process, requiring distinct votes for President and Vice President to prevent split tickets.
Ratification Debate: Federalists vs. Anti-Federalists
Ratification Process: Required 9 of 13 states (3/4 majority), not unanimity. Ratification was state-by-state, binding only those who agreed.
First States: Delaware was first (seeking Union protection); large states like Pennsylvania, New York, and Virginia had heated debates.
Federalists: (Hamilton, Madison, John Jay) Supported the Constitution.
Anti-Federalists: Opposed the Constitution, raising concerns:
Powerful National Government: Fear of a monarchical president (unlimited re-election), erosion of state sovereignty, and an all-powerful Supreme Court.
Taxation: Citizens couldn't afford two layers of taxation.
Standing Army: Feared oppression of citizenry.
Religious Freedom: Lack of explicit safeguards.
Missing Bill of Rights: The most persuasive argument.
Convention's Reasons for Omission (Federalist 84):
Experiment (Too Early): Constitution was a theoretical experiment; wait to see if changes are needed.
Unnecessary: States already had Bills of Rights, and states wielded most direct power over citizens.
Structural Safeguards: Constitution's design (separation of powers, checks and balances, enumerated powers) intrinsically protected rights.
Dangerous: A written Bill of Rights might imply only listed rights are protected, leaving others (like privacy) vulnerable.
Promise of a Bill of Rights: Federalists promised to add a Bill of Rights immediately to secure ratification.
Initial Elections (1789): Federalists won overwhelming majorities in Congress.
Madison's Leadership: Though enthusiasm dwindled, James Madison, as "Father of the Bill of Rights," drafted and introduced 17-18 amendments (many from Virginia's Bill of Rights).
Washington's Influence: President Washington, swayed by Madison, publicly endorsed a Bill of Rights in his inaugural address, forcing Congress to act.
Congressional Changes: Federalists made changes, rejecting Madison's proposed preamble (from Declaration), eliminating freedom of conscience (seen as redundant to speech), and a "separation of powers" amendment (seen as obvious).
Conscientious Objector Clause: Madison's proposal for religious exemption from military service was controversial but later passed as statutory law.
Ratification: amendments submitted on September 28, . ratified by December 15, , becoming the Bill of Rights.
Non-ratifiers: Massachusetts, Connecticut, Georgia (Georgia later ratified in ).
Unratified Amendments:
Ratio System for Representatives: Proposed to adjust representation ratios as population grew.
Congressional Compensation: Stipulated that congressional pay raises wouldn't take effect until a new Congress was elected. Eventually ratified as the Amendment in the (no sunset provision).
Evolution of the Bill of Rights
Original Application: The Bill of Rights only applied to federal/national action, not state action (e.g., Jefferson couldn't stop Connecticut's state religion).
Selective Incorporation (Beginning 1925): Supreme Court cases, starting with Gitlow v. New York (), gradually incorporated individual amendments against state action (one piece at a time) through the Amendment.
Today, almost all Bill of Rights provisions apply to states, except the Amendment (quartering troops).
Latest Incorporation: The Amendment (right to bear arms) was incorporated against states in McDonald v. City of Chicago ().
Unwritten Rights: The Supreme Court has interpreted various rights not explicitly in the Constitution (e.g., privacy, abortion, marriage, freedom of expression) but implied by its principles.
Federalism
Definition: The division of power between the national government and state/local governments. Originally, "federalism" meant a contract between different sovereign entities (as in the Articles of Confederation).
Madison's Re-definition (Federalist 39): Argued the Constitution created a "compound Republic"—a national government with certain federal (state-representing) features. This became the modern understanding of federalism.
Criteria for Mixed Character:
Founding/Ratification: Primarily federal (three-quarters of states needed to ratify).
Source of Ordinary Powers: Mixed: House is national (elected by people), Senate is federal (elected by state legislatures).
Operation of Government: National (government acts directly on individuals).
Extent of Power: Not wholly national (limited by enumeration of powers).
Amendment Process: Federal (two-thirds of Congress, three-fourths of states).
Defense of Federalism (Case For)
Liberty: Decentralized power (horizontal and vertical separation) prevents tyranny by diffusing power.
Accountability (Popular Accountability): Proximity to the people at state/local levels fosters better representation and engagement from voters.
Diversity (Public Policy): Allows states to tailor public policy to local problems and circumstances (e.g., education, crime reduction). Prevents a "one-size-fits-all" national approach.
Innovation: States act as "laboratories for public policy," allowing diverse experiments. Successful state policies can then be adopted nationally.
National Effectiveness: Prevents the national government from becoming overloaded and inefficient by delegating certain powers to states.
Civic Virtue: Keeping politics local enhances civic virtue by increasing citizen engagement and awareness of issues impacting them directly.
Case Against Federalism
Tyranny of the Majority: States, being smaller and more homogeneous, are more susceptible to majority factions and injustice (e.g., segregation, as seen in Brown v. Board of Education and the Civil Rights Act of ).
Equality: Leads to a "myriad of different state and local ordinances," undermining national equality and creating confusion for citizens (e.g., differing marijuana laws, speeding fines, firearm transport laws across states).
Competence (Confidence): Founders believed the national government would attract higher quality public servants due to greater prestige and scope.
Interconnectedness (National Problems): In a technologically advanced, interconnected nation, few problems are purely local or regional; what affects one state often impacts others (e.g., hurricanes in the Gulf affecting national gas prices).
Policy Activism: Achieves desired public policy more efficiently at the national level (e.g., Civil Rights Act) rather than negotiating with 50 separate state legislatures.
National Unity: Historically, excessive state power led to disunion and Civil War; federalism risks rekindling separatist tendencies.
The Commerce Clause: A Threat to Federalism
Original Intent: Framers agreed the national government should regulate commerce due to state failures under the Articles. It received little debate.
Expansion: Became the primary tool used by the national government to expand its power, regulating areas historically under state control.
U.S. v. E.C. Knight Co. (): Congress's attempt to break up a sugar refining monopoly under the Sherman Antitrust Act.
Court's Distinction: Established categories for regulation:
States: Regulate production and manufacturing (e.g., mining, sugar refinement).
National Government: Regulate commerce (trading/selling/movement of goods).
Interstate vs. Intrastate: National government regulates interstate commerce (across state lines); states regulate intrastate commerce (within a state).
Ruling: Sugar refining was manufacturing (production), not commerce, so Congress could not regulate it, limiting federal power.
Hammer v. Dagenhart (): Federal Child Labor Act of prohibited interstate commerce of goods produced by child labor.
Ruling: Child labor was a manufacturing issue, not commerce, so states (and parents like Dagenhart) could regulate it. The "harmful" nature of the production process did not make the goods themselves harmful in commerce.
FDR's Court-Packing Threat (1937): Faced a conservative Supreme Court, FDR threatened to pack it with New Deal supporters, leading to a "switch in time that saved nine." The Court became more amenable to federal regulation.
Wickard v. Filburn (): Farmer Filburn grew excess wheat for personal consumption, exceeding his Agricultural Adjustment Act (AAA) allotment.
Argument: His wheat was not entering commerce, so Congress couldn't regulate it.
Court's Ruling: Even personal consumption affected interstate commerce. If all farmers grew excess for personal use, it would cumulatively and substantially affect national wheat prices and the market.
"Aggregate Effects Test": Congress need only show a rational basis for believing a regulated activity has a substantial effect on interstate commerce (future harm considered).
United States v. Lopez (): Congress enacted the Gun-Free School Zones Act of .
Background: School shootings spurred federal action. The law was arguably unnecessary (states already prohibited guns in schools) and ineffective (minors unaware of federal vs. state jurisdiction).
Lopez's Case: Alfonso Lopez brought a gun to school. Federal charges were filed.
Supreme Court's Challenge: A 5-4 decision, Justice Rehnquist, sought to rein in the Commerce Clause. He developed a new, stricter "Lopez test":
Channels of Interstate Commerce: Congress can regulate things like highways, bridges, rivers ( criterion).
Instrumentalities of Interstate Commerce: Congress can regulate things used in commerce (cars, trucks, planes, even shipping boxes) ( criterion).
Activities with a Substantial Effect on Interstate Commerce: Congress must empirically demonstrate a substantial effect (removing the "rational basis" standard) ( criterion).
Ruling: A gun in a school zone met none of the criteria. The government's argument (that guns in schools lead to poor education, which affects future economic participation, thus affecting commerce) was deemed too attenuated. The law was unconstitutional under the Commerce Clause.
Significance: Marked a rare brake on Congress's Commerce Clause power, though the "substantial effect" test still leaves considerable room for federal action. Lopez's conviction was vacated, and he was able to join the Marine Corps.
Exam Review
Format: Online exam (Canvas quiz).
Content: Covers material from Lycurgus up to and including the Commerce Clause cases.
Questions: Approximately 5-6 ID (Identification) questions and 2-3 short answer questions.
ID Questions: Define and explain the significance of a key term in 2-3 sentences.
Short Answer Questions: Longer explanations, possibly combining multiple IDs.
Study Tips: Focus on key terms, principles, and historical figures from notes and readings. Understand definitions and significance. No random obscure details. Answer questions directly and concisely.
Key Terms for Review (Examples): Faction, Trustee Model of Representation, Tacit Consent, Compound Republic (Federalist 39), Economic Bill of Rights, Aggregate Effects Test (Wickard v. Filburn), Lopez Test (U.S. v. Lopez), Lincoln's definition of Liberty, MLK's concept of Social Equality.
No Lockdown Browser: Professor does not use Lockdown Browser software.
Slavery and the Constitution - The Glaring Exception in the Founding
The ratification of the Declaration of Independence, which committed to the principle that "all men are created equal," stood in direct contradiction to the widespread toleration of slavery. Thomas Jefferson himself included an accusation against the King for refusing colonial efforts to legislate against the slave trade in the Declaration, thereby indicating an awareness of slavery's immorality. However, the practical problem of immediate abolition was complex: a large population of uneducated and untrained black slaves, entirely dependent on white overseers, would face chaos and have no immediate means of support if suddenly freed. At the time of the founding, direct welfare benefits or robust government services to assist a newly freed population simply did not exist at the federal level, with only some limited state-level benefits available.
Founders' Original Outlook on Slavery
Many of the Founders held the (perhaps unrealistic) goal and intention to eradicate slavery, believing it would die out within a couple of generations. This belief was founded on several reasons, especially prior to the invention of the cotton gin. Slavery was largely considered an inefficient economic system, as most Southern farmers were subsistence farmers and not growing rich from crops like wheat, corn, sugar, and tobacco (with tobacco being the most profitable among them). The expectation was that if a more efficient labor system could be devised, Southerners would naturally abandon slavery.
Constitutional Convention and Slavery Compromises
At the Constitutional Convention, Charles Pinckney of South Carolina explicitly stated that there would be no Constitution unless slavery was protected, reflecting a widespread Southern sentiment. This presented a significant dilemma for the Framers: eliminating slavery would inevitably lead slave states to refuse ratification, potentially causing them to form their own countries or align with European powers like Spain, France, or England. Such an outcome would render the American constitutional system unworkable or significantly smaller. Therefore, to form a unified nation and ensure the ratification of the Constitution, compromises on slavery were deemed necessary.
Three Major Slavery Compromises:
Three-Fifths Compromise
This compromise counted slaves as three-fifths of a person for the purposes of both representation in the House of Representatives and direct taxation. Southerners desired to count slaves as full persons to increase their representation in the House and Electoral College, while Northerners opposed counting slaves as full persons for representation without commensurate responsibilities or rights. This compromise can be interpreted as having an anti-slavery incentive mechanism: states that emancipated slaves would see them count as whole persons for representation, thereby increasing their political power and reducing their "property" tax burden.Importation Clause (Transatlantic Slave Trade)
Under this provision, Congress was prohibited from banning or ending the importation of slaves until , which was 20 years from the Constitution's ratification. This clause can be seen as an anti-slavery measure, as it set an end date for the external supply of slaves, aiming to put slavery on a path to disintegration by making it too expensive to replenish the labor supply (with rising demand and limited supply). By , the existing slave population was largely self-sustaining. The Founders hoped that by this time, free labor would replace slave labor due to its greater efficiency. The benefits of free labor included financial stimulus, as laborers earning wages would buy goods and stimulate the economy; reduced overhead for employers who would not pay for healthcare, lodging, food, or upkeep; negotiated wages, allowing laborers to negotiate contracts and forcing plantation owners to offer competitive wages; higher productivity from free laborers working willingly with built-in incentives (e.g., extra pay for extra production); and reduced oversight, as self-motivated workers required fewer overseers. Additionally, land scarcity in the East due to large families pushed many towards westward expansion or becoming free laborers.Fugitive Slave Clause
This clause required that if a slave escaped into a free state, they had to be returned to their owner. However, the Constitution did not specify who was responsible for returning runaway slaves – whether it was the federal government, state governments, or slave owners themselves. This ambiguity created significant conflict over the next 40 years as Northern states increasingly denied the efficacy of the clause, leading Southerners to perceive constitutional violations. Notably, the Constitution avoided using the word "slavery," instead referring to slaves as "persons." This recognition of slaves as "people" overtly created a contradiction with their status as property, subtly hinting at a future potential for rights. In the early Republic, Southerners generally viewed slavery as a "necessary evil," acknowledging its immorality but claiming its necessity for the Southern economy and referencing historical reliance on slavery in other founding regimes like Rome and Greece. However, slavery in America was qualitatively different: it was intimately tied to race, making its abolition inextricably linked to combating racism, and children of slaves remained slaves, unlike in Rome where they might become free citizens. Frederick Douglass viewed slavery in the Constitution as "scaffolding on a building"—ugly but temporary, expecting it to be deconstructed.
Factors Leading to Slavery's Entrenchment (Instead of Decline)
In , it was indeed reasonable to believe slavery was in decline due to its inefficiency and land scarcity. Utopian solutions, such as creating Liberia (a country in Africa for former slaves), proved impractical due to the massive scale of the operation required. However, the invention of the cotton gin in the early dramatically transformed the economic landscape. Southern soil proved ideal for high-quality cotton production, and the Industrial Revolution in England created a massive demand for raw cotton, with textile mills willing to pay premium prices. Cotton rapidly became a highly profitable cash crop, moving beyond mere subsistence farming. By , the return on cotton equaled all other domestic farm products combined. This immense profitability transformed slavery from an inefficiency the South could not afford to one it could easily subsidize, akin to a "Ferrari analogy." The Louisiana Purchase, greatly expanded the size of the United States, effectively doubling its landmass and opening vast fertile lands west of the Mississippi, solving the land scarcity problem. This allowed farmers' sons to go west instead of being forced to become free laborers, thereby removing the economic pressure for Southerners to shift from slave labor to free labor. Deeply entrenched economic systems, especially those developed over 200-300 years, are difficult to change, particularly when assumptions about human nature (such as rationality) prove flawed. The Missouri Compromise of further intensified the debate by drawing a line across the country, allowing states above it to be free and states below to be slave. Thomas Jefferson famously called the Missouri Compromise a "fire bell in the night," warning of its potential to ignite nationwide conflict over slavery and comparing it to holding a "wolf by the tail." Additionally, the Haitian Revolution, a brutal slave revolt where slaves murdered white populations, caused widespread fear in the American South of a "race war" if slaves were liberated without sufficient means of support.
Northern and Southern Views on Slavery (Mid-19th Century)
Northern public opinion on slavery was complex, not simply a clear-cut desire to end it. Many Northerners were uncomfortable with an integrated society and viewed Southern blacks as competition for scarce jobs if freed. Anti-slavery sentiment in the North often did not equate to a lack of racism; Northerners frequently opposed holding blacks as property but were not enthusiastic about black migration, or integration in neighborhoods, schools, or churches. While quick to condemn slavery as wrong, Northerners often became uncomfortable when discussing practical solutions.
Conversely, the transformation of the Southern stance on slavery shifted dramatically from viewing it as a "necessary evil" to a "positive good." Intellectual currents in the South evolved to justify slavery as beneficial for both whites and blacks. The economic justification was paramount, as slavery was deemed essential for the Southern economy, especially cotton production. Theological justifications also emerged, with Southern preachers citing Old Testament passages seemingly tolerating slavery, fueling a "theological war" with Northern abolitionists who cited other biblical passages. Slavery also fostered a mindset of white racial superiority, making its abolition and the eradication of racism more challenging. Southern social science, particularly the emerging field of ethnology, produced "research" purporting to show black intellectual inferiority based on skull size. These biased studies were eagerly published and consumed, reinforcing racist prejudices and cultural norms through confirmation bias.
Abolitionist Movement (1830s onward)
William Lloyd Garrison was a prominent anti-slavery advocate who published "The Liberator" and founded the abolitionist movement. Abolitionists demanded immediate abolition, rejecting gradualism, and largely based their arguments on the Declaration's principles of "all men are created equal" and endowed with natural rights. For Garrison, the Declaration was divinely inspired ("God's law"); consequently, any law or constitutional provision contrary to it was "null and void" and lacked legitimacy. Garrison famously denounced the Constitution as an "evil document" due to its slavery compromises, often symbolically ripping copies of it in public speeches. While Garrison's view of a "higher law" informing all societal rules, including the Constitution, could be problematic for strict separation of church and state, he believed God's law dictated ultimate validity.
Stephen Douglas and Popular Sovereignty
Stephen Douglas was a prominent politician of the , known as the architect of the Compromise of and the Kansas-Nebraska Act in . The Lincoln-Douglas Debates of , a series of seven extremely well-attended debates for an Illinois Senate seat, elevated Lincoln to national prominence. Douglas characterized Lincoln as an abolitionist who believed the Declaration included "Negroes" in its equality clause, a position Douglas rejected. Douglas asserted that the Declaration was intended only for "men of European birth or descent" (white men), not Indians or Negroes, offering as proof that if the Founders truly believed in universal equality, they would have abolished slavery immediately. This view, however, overlooks the complex political reality and necessary compromises for the Constitution's ratification, showing a simplistic understanding of the Founders' dilemma between slavery and disunion.
Central to Douglas's philosophy was popular sovereignty, the principle that in a republic, the people should rule and their voice is the ultimate authority. Applied to slavery, Douglas believed decisions about its legality should be made by the people of each state through a popular vote, not by the national government. He argued that each state is sovereign and cannot impose its morals, values, or laws on another state (e.g., Massachusetts banning slavery does not dictate Georgia's policy). Douglas proposed that people in new territories should similarly vote on whether to be free or slave states. While this approach appeared democratic by upholding majority rule at the state level, it faced significant criticisms. Moral questions arose about whether it is appropriate to resolve fundamental moral issues like slavery by popular vote, especially when the disenfranchised could not participate. Practically, it led to violent conflicts like "Bleeding Kansas" and ultimately the Civil War. A modern analogy can be seen in the Supreme Court's Dobbs decision regarding abortion, which similarly returned the issue to individual states, reflecting a lack of national consensus.
Lincoln's rebuttal to popular sovereignty was rooted in the moral absolute that "If slavery isn't wrong, then nothing is wrong." He argued that fundamental principles like equality and natural rights are not subject to legislation or popular vote, as the Declaration secures these as inherent to all citizens, irrespective of state decisions.
John C. Calhoun and the Attack on the Declaration
John C. Calhoun stood as an outlier on the pro-slavery side, launching a full assault on the Declaration of Independence. Calhoun famously argued that the Declaration's proposition that "all men are born free and equal" is a "hypothetical truism"—a truth based on a mere supposition that cannot exist and has no practical value. He literally attacked the wording, asserting that "men are not born, infants are born," and infants are incapable of freedom and necessarily subject to parents. He contended that infants lack the capacity for thinking and acting (freedom) and are born into inherent inequalities, such as dependence on parents. Calhoun also critiqued the concept of a "state of nature," stating that anthropology and archaeology offer no proof of humans ever existing in an isolated state; humans, he argued, have always existed in social groups. Furthermore, he believed that in a hypothetical state of nature, basic human survival, especially reproduction and child-rearing, would be impossible (e.g., pregnant women would be vulnerable, and mothers might abandon infants for self-preservation). The consequence of this critique was that if the state of nature is hypothetical, then derived concepts like natural equality and natural rights are also hypothetical.
Calhoun posited three fundamental conditions for man: . Individual (man living alone, which he considered hypothetical); . Social (man living in groups but still needing laws and institutions); and . Political (man living under government, which he asserted is the only natural state). For Calhoun, if men are "created equal," it is because a political community decided to make them equal through laws, ordinances, and values, not because of inherent natural equality. Thus, the Declaration, for Calhoun, was merely a successful breakup letter from Britain, with its natural rights principles having no lasting meaning or binding authority for American political organization. It did not dictate how American society should be organized or which form of government should exist beyond breaking from tyranny. Calhoun's political science was founded on relativism, arguing that morals, values, and ethics are relative to time, place, and circumstance, with no one set of values being universally superior. He further argued that America comprised two distinct political communities: the North, adhering to Declaration principles, and the South, devoted to repudiating them and believing in inequality. This fundamental disagreement, he believed, meant the nation could not hold together, and Civil War was inevitable. Alexander Stephens, Vice President of the Confederacy, later affirmed this by stating that inequality was the cornerstone of the Confederacy.
Abraham Lincoln: Preservation of the Union and a New Birth of Freedom
Abraham Lincoln sought to save the "principles of Jefferson from total overthrow" in response to critiques like Calhoun's. Lincoln aligned Jefferson's principles with mathematical axioms, arguing that denying them prevents any rational discussion of free society. He identified various attacks on the Declaration's principles, including "glittering generalities" (Rufus Choate), "self-evident lies" (Calhoun), and application "only to superior races" (Douglas).
The Gettysburg Address (November 19, 1863)
Delivered at the dedication of a national cemetery on the battlefield of Gettysburg, a pivotal Union victory, the Gettysburg Address is often mistakenly believed to have been written on a train; in reality, Lincoln had drafts seven months prior. Its opening line, "Four score and seven years ago," references and the Declaration of Independence as the nation's founding moment, not the Constitution. Lincoln's central axiom changes Jefferson's "all men are created equal" to "conceived in Liberty" and "dedicated to the proposition that all men are created equal." The significance of "conceived in Liberty" is axiomatic because, naturally, no infant is born with a natural right to rule over another, thus challenging the divine right of kings. Equality is presented as an ongoing proposition, a process derived from liberty that requires continuous dedication and reinforcement by each generation. Lincoln repeatedly uses the key word "dedicated" to emphasize the ongoing commitment required from the living to uphold the nation's founding principles, particularly equality. The war, for Lincoln, tests whether a nation "so conceived and so dedicated can long endure," reinforcing the philosophical battle for ideas alongside the physical one. The war's ultimate aim is to achieve a "new birth of freedom" for the country, where both government and people are devoted to equality. Despite its brevity (272 words compared to Edward Everett's 13,607-word oration), its profound message established it as one of the greatest speeches in American history.
The Second Inaugural Address (March 4, 1865)
Delivered near the end of the Civil War (Lee's surrender occurred on April 9, ), the Second Inaugural Address served as a reply to Stephen Douglas by addressing the deep moral questions surrounding slavery and the war. Lincoln's audience was his "fellow countrymen," a unifying address to all Americans, North and South. He acknowledged high hopes but offered no prediction of the war's end, suggesting divine will was at play, famously stating, "And the war came," which emphasized the inevitability of the conflict despite universal desires to avoid it. Lincoln explicitly stated slavery as the sole "peculiar and powerful interest" causing the war, dismissing states' rights and other arguments. In his contemplation of God's judgment, Lincoln reflected that neither side was fully right, noting that both North and South read the same Bible and prayed to the same God, yet God did not fully answer either's prayers because both were complicit in the sin of slavery. The war, therefore, was God's punishment for slavery, the "woe" upon those by whom the offense came, encapsulated in the powerful line, "Every drop of blood drawn with the lash shall be paid by another drawn with the sword." This explained the war's duration and magnitude, and Lincoln's indifference to the outcome, as it depended on God's will until the sin was absolved. The spirit of Reconstruction outlined in the address was one "with malice towards none, with charity for all," calling for a lenient and unifying approach to Reconstruction, against the Northern desire for vengeance. By acknowledging mutual guilt in slavery, he offered a basis for shared healing rather than retribution, which was practical given that vengeance would prolong conflict and make reincorporation difficult, as the federal government was not large enough to enforce prolonged occupation. Lincoln liberally quoted scripture (4 direct, 2 paraphrased), an unprecedented move for a president at the time, using it to frame the war as a moral reckoning. He also supported Black suffrage and would likely have approved the 13th, 14th, and 15th Amendments, with the 13th Amendment specifically abolishing slavery and involuntary servitude.
The Economic System and Consent
The Economy: Jefferson vs. Hamilton
The debate over which economic system is most compatible with the Constitution has been long-standing. Thomas Jefferson advocated for an agrarian economic system founded on yeoman farmers or small farmers working the land. He believed this system offered widespread land ownership, food security, and self-sufficiency, which in turn fostered civic virtue due to self-sufficiency and a lack of leisure time for "mischief." Self-sufficient farmers, in his view, required less government assistance, thereby maintaining limited government.
In contrast, Alexander Hamilton envisioned a commercial and industrial republic, based on a diverse economic system with various professions like bankers, financiers, and traders. He argued this would lead to a wealthier nation and greater material prosperity. Hamilton believed that wealth would transfer rapidly, preventing the permanent rich/poor classes seen in European systems. This system provided a non-political outlet for ambitious individuals to pursue wealth, diverting them from potentially destabilizing political power struggles such as factions, riots, and insurrections. He critiqued purely political ambition, noting that even the presidency cannot satisfy the highly ambitious, as constitutional checks and balances limit direct power. The pursuit of economic ambition, he argued, drives new corporations, factories, and businesses, creating jobs and raising wages through a trickle-down effect. While Jefferson's agrarian vision dominated the early Republic, the 19th century saw increasing industrialization, and modern America largely reflects Hamilton's commercial vision.
Consent of the Governed
The Declaration's principle states that all government derives from the consent of the governed. Jefferson championed expressed consent, meaning each citizen must explicitly consent to the Constitution and laws to be bound by them. He proposed a constitutional convention every years (generational consent) to allow each generation to ratify or amend the Constitution. However, this idea was critiqued as impractical, creating instability, undermining respect for law, and potentially leading to continuous legal upheaval.
James Madison, conversely, advocated for tacit consent, which is implied consent given by remaining within the jurisdiction of the government and enjoying its benefits. He argued that citizens have two choices: consent to laws and institutions by being a U.S. citizen, or if unhappy, leave the country. Critics, however, found this view unrealistic in practice for most people due to the logistical and financial barriers to emigration, citing David Hume's "tyrannical boat captain" analogy. This debate resurfaced historically, notably during the Vietnam War regarding draft resistance.
FDR and Modern Liberalism: The Economic Bill of Rights
The Great Depression of the presented widespread economic crisis and high unemployment, prompting President Franklin D. Roosevelt's New Deal policies. This involved aggressive government intervention, expanding federal control over the economy through actions like regulating banks, increasing spending, and creating employment programs, initially characterized as emergency measures rather than permanent shifts. In his State of the Union Message, FDR linked traditional "political rights" (life and liberty) from the Declaration to a new need for "economic rights" to ensure "equality in the pursuit of happiness." He proposed a "Second Bill of Rights," an Economic Bill of Rights, which outlined a new set of rights deemed necessary for individual freedom and economic security, irrespective of race or creed.
This proposal signified a transition from negative rights to positive rights. Classical liberalism primarily focuses on negative rights, which protect individuals from government interference (e.g., freedom of speech, religion, from unreasonable searches), with the Bill of Rights largely containing such provisions. Modern liberalism, in contrast, emphasizes positive rights, which require the assistance of government for individuals to exercise them (e.g., minimum wage, decent home, medical care, education, social security).
Examples of the proposed economic rights included the right to a useful and remunerative job (implying a minimum wage), the right to earn enough for adequate food, clothing, and recreation (suggesting government subsistence or welfare), the right of farmers to raise and sell products for a decent living (farm subsidies), the right to adequate medical care and good health (universal healthcare), the right to protection from economic fears of old age, sickness, accident, and unemployment (Social Security), and the right to a good education (public education systems, college access). However, defining "adequate" or "good" for these rights presents subjective and complex challenges (e.g., ketchup as a vegetable, varied clothing needs, personal recreation choices). Many of these rights have since been enacted through statutory law, often involving significant government spending and intervention, such as food stamps and Obamacare.
The distinction between classical and modern liberalism is profound. Classical liberalism, associated with figures like John Locke, Adam Smith, and Montesquieu, adheres to the principle of "government which governs best, governs least," advocating for a limited government. Its psychology emphasizes the duties of citizens (to self, family, community, government oversight) and promotes equal opportunity, with the government acting as a referee ensuring fair rules but not guaranteeing outcomes. Modern liberalism, from FDR onwards, embraces a welfare state with a larger government providing public welfare. Its psychology emphasizes entitlements—what government owes citizens—and promotes equal outcome. In this view, the government acts as a scorekeeper, intervening to reduce disparities in outcomes, though critics argue this approach can subsidize mediocrity and discourage individual effort.
Martin Luther King Jr. and Social Equality
Martin Luther King Jr.'s "I Have a Dream" speech was delivered at the Lincoln Memorial, directly referencing Lincoln's Emancipation Proclamation and his efforts for political equality. King broadened the concept of equality to include social equality, aiming to dismantle segregation and discrimination. His opening, "Five score years ago," echoed Lincoln's Gettysburg Address, underscoring the unmet promises of freedom and equality for African Americans. Despite the Emancipation Proclamation and the 13th and 14th Amendments, King highlighted that years later, Negroes remained "not free," crippled by segregation and discrimination, living in poverty and "exile in his own land." King harshly critiqued gradualism, rejecting the idea of waiting for social equality to evolve organically (challenging Booker T. Washington's approach). He demanded immediate action to fulfill the "promises of democracy" and achieve racial justice, articulating the "fierce urgency of now."
King employed the powerful "cash a check" metaphor: the Constitution and Declaration were a "promissory note" guaranteeing unalienable rights to all men, but America had issued a "bad check" to its black citizens, returning "insufficient funds" when they sought their rights. His address was aimed at both white and black America. To white America, it was a warning that refusing justice would lead to continued social unrest ("whirlwinds of revolt"). To black America, it was a call for continued non-violent resistance, cautioning against bitterness, hatred, and physical violence, thereby distancing his movement from figures like Malcolm X's black nationalism. His "dream" was a vision rooted in the American Dream and the Declaration's creed of equality, desiring integration where former slaves and slave owners' sons would sit together at the "table of brotherhood," and children would be judged by the "content of their character, not by the color of their skin." King sought to move beyond mere tolerance—allowing others to exist despite disagreement ("I don't like it, but I'll put up with it"; leaving each other alone)—towards full acceptance and brotherhood, which entails support and engagement with differing beliefs, choosing people based on character. While social equality remains a challenge, notable progress has been made, evident in areas like interracial dating, sports, and the military.
The Constitutional Convention: From Articles to a New Government
Following the Revolutionary War, the young nation was exhausted, deeply in debt, and fragmented into quasi-independent states. The Articles of Confederation, in effect from to , established a weak national government where all power resided in a unicameral Congress, with virtually no executive or judiciary. States retained significant autonomy and sovereignty. Important legislation, such as taxes and defense, required a two-thirds vote, and amendments demanded unanimous consent of all states, rendering effective action nearly impossible. This led to significant problems: a national debt exacerbated by the government's inability to levy taxes and its reliance on unreliable state contributions, causing a plummeting credit rating; a lack of commerce regulation where states levied their own tariffs and trade barriers, fostering economic competition and disunity instead of a unified national market and often leading to retaliatory measures. Furthermore, domestic unrest flared, exemplified by Shays' Rebellion in -, when Massachusetts farmers, led by Daniel Shays, rebelled against foreclosures and stormed courthouses. Though small-scale, this event highlighted the national government's inability to maintain order and hinted at the potential collapse of the Union.
Against this backdrop, the Constitutional Convention convened in May in Philadelphia. Its explicit mandate from the Continental Congress was solely to revise the Articles of Confederation and address the "exigencies of the Union." However, the Framers, recognizing the depth of the problems, instead created an entirely new system of government, exceeding their explicit mandate but justified by the perceived desperate need to address the Union's "exigencies." This convention occurred during a rare period of peace, allowing for deliberation, reason, and compromise, unlike most constitutions born out of violence. The atmosphere was characterized by strict secrecy in all proceedings to foster open debate, allow delegates to change their minds without public pressure, and avoid political inconsistencies. James Madison meticulously recorded daily notes, which were published only after the death of the last delegate (his own). The presence of George Washington, who reluctantly accepted the role of presiding officer, lent immense legitimacy and trust to the proceedings, ensuring decorum and calming heated debates through his implicit authority. The attendees (out of appointed) represented a diversity of backgrounds (economic, educational), although primarily white men. Key figures included James Madison (Father of the Constitution), Gouverneur Morris (who drafted the Constitution and was known for theatrics, having lost a leg in an accident), Alexander Hamilton (an advocate for a strong central government), Roger Sherman (who authored the Great Compromise and had children), James Wilson (key in developing the Electoral College and presidency), Elbridge Gerry (known for gerrymandering), and Benjamin Franklin (the most famous delegate, an avid swimmer). Notably absent were Thomas Jefferson (Ambassador to France), John Adams (Ambassador to Britain), Sam Adams, John Hancock, and Patrick Henry (who famously feared a "rat" in Philadelphia).
Key Plans and Debates
Virginia Plan (Large State Plan)
Proposed by Edmund Randolph, but chiefly authored by James Madison, the Virginia Plan advocated for a strong national government that consolidated the union and acted directly on individuals. It proposed three distinct branches: legislative, executive, and judiciary. The legislative branch was to be bicameral, with a lower house elected by the people based on proportional representation by population, and an upper house nominated by the lower house, indirectly elected, also with proportional representation. A significant feature was a national legislative veto, allowing Congress to veto state laws contrary to the federal Constitution. The plan also included a Council of Revision, comprising the President and judiciary, to review and strike down legislation. Initially, the President was to be elected by Congress. This plan shocked Small State advocates, who viewed it as a complete overhaul rather than an amendment, but it nevertheless became the basis for early debates.New Jersey Plan (Small State Plan)
Proposed by William Patterson, the New Jersey Plan sought to amend the Articles of Confederation rather than fundamentally changing its structure. It proposed a unicameral legislature with equal representation for states (one vote per state). Congress would gain new powers to raise money directly through taxes and regulate commerce. The plan included an executive council (multiple executives) with the power to compel state compliance, even via force, and added a national judiciary. However, this plan was seen as rushed and widely inadequate, with Luther Martin's tedious defense doing little to aid its cause.Hamilton Plan (Extreme National Plan)
Alexander Hamilton's plan proposed adopting the British system of government, with an elected monarch, a bicameral parliament, and a judiciary, modified for the American context. He argued that the British system was the most effective in protecting rights, and the colonists' issue was taxation without representation, which could be solved domestically. This plan was likely introduced as an extreme pole to make the Virginia Plan seem like a reasonable compromise, subtly pushing the overall debate towards a stronger national government.
Three Major Debates at the Convention
Slavery
The Convention extensively debated slavery, ultimately leading to three major compromises: the Three-Fifths Compromise, the Importation Clause, and the Fugitive Slave Clause, as discussed earlier.Big States vs. Small States (Representation)
The core conflict pitted small states, which demanded equal representation, against large states, which demanded proportional representation. This was resolved by the Great Compromise, also known as the Connecticut Compromise, authored by Roger Sherman. It established a bicameral legislature: the House of Representatives with proportional representation by population (favoring large states), and the Senate with equal representation for each state (two senators per state, favoring small states). As a consequence, the Senate remains one of the most malapportioned legislative bodies globally, with, for example, California senators representing 25 million people compared to Delaware senators representing 500,000. Additionally, James Wilson developed the Electoral College. Each state receives electors equal to its total number of representatives in the House plus its two senators. The original intention was for these electors, chosen by the people, to be trustworthy, experienced, and wise trustees, making informed choices for president and vice president on behalf of uninformed citizens to prevent direct popular votes from choosing unknown candidates. Each elector initially cast two votes for president, with one having to be for a non-resident of their state to combat local favoritism. The candidate with the majority of electoral votes would win, and the second-place candidate would become Vice President (as seen with Adams-Jefferson in ). However, a significant flaw was that the system did not account for the rise of political parties, which quickly undermined the trustee model by binding electors to party candidates. If no candidate achieved a majority in the Electoral College, the election would go to the House of Representatives, where each state delegation would get one vote, giving small states disproportionate power in such scenarios. The Amendment later modified this process, requiring distinct votes for President and Vice President to prevent split tickets.Ratification Debate: Federalists vs. Anti-Federalists
The ratification process required 9 of states (a three-quarters majority), not unanimity, with ratification being state-by-state and binding only those who agreed. Delaware was the first state to ratify, seeking Union protection, while large states like Pennsylvania, New York, and Virginia experienced heated debates. The Federalists, including Hamilton, Madison, and John Jay, supported the Constitution. The Anti-Federalists, conversely, opposed the Constitution, raising concerns about a powerful national government, fearing a monarchical president with unlimited re-election, the erosion of state sovereignty, and an all-powerful Supreme Court. They also worried citizens could not afford two layers of taxation, feared a standing army would oppress the citizenry, and noted the lack of explicit safeguards for religious freedom. Their most persuasive argument was the missing Bill of Rights. The Convention's reasons for this omission, detailed in Federalist , included: that the Constitution was a theoretical experiment, so it was too early to add amendments; that a Bill of Rights was unnecessary since states already had their own, and states wielded most direct power over citizens; that the Constitution's structural safeguards (separation of powers, checks and balances, enumerated powers) intrinsically protected rights; and that a written Bill of Rights might be dangerous by implying only the listed rights were protected, leaving others (like privacy) vulnerable. To secure ratification, the Federalists promised to add a Bill of Rights immediately. In the initial elections of , Federalists won overwhelming majorities in Congress. Although enthusiasm for a Bill of Rights dwindled, James Madison, as "Father of the Bill of Rights," drafted and introduced 17-18 amendments, many derived from Virginia's Bill of Rights. President Washington, swayed by Madison, publicly endorsed a Bill of Rights in his inaugural address, compelling Congress to act. Federalists in Congress made changes, rejecting Madison's proposed preamble (from the Declaration), eliminating freedom of conscience (seen as redundant to speech), and a "separation of powers" amendment (seen as obvious). Madison's proposal for a conscientious objector clause for religious exemption from military service was controversial but later passed as statutory law. Twelve amendments were submitted on September 28, , and of these were ratified by December 15, , becoming the Bill of Rights. Massachusetts, Connecticut, and Georgia initially did not ratify, though Georgia later ratified in . Two amendments remained unratified for a long time: a ratio system for representatives, which proposed to adjust representation ratios as population grew, and a congressional compensation amendment, which stipulated that pay raises for Congress would not take effect until a new Congress was elected. The latter was eventually ratified as the Amendment in the , without a sunset provision.
Evolution of the Bill of Rights
Originally, the Bill of Rights only applied to federal/national action, not state action (e.g., Jefferson could not stop Connecticut's state religion). However, beginning in with cases like Gitlow v. New York, the Supreme Court gradually incorporated individual amendments against state action, one piece at a time, through the Amendment. Today, almost all Bill of Rights provisions apply to states, with the notable exception of the Amendment (quartering troops). The Amendment (right to bear arms) was the latest to be incorporated against states in McDonald v. City of Chicago (). Furthermore, the Supreme Court has interpreted various unwritten rights not explicitly stated in the Constitution, such as privacy, abortion, marriage, and freedom of expression, but implied by its principles.
Federalism
Federalism is defined as the division of power between the national government and state/local governments. Originally, "federalism" referred to a contract between different sovereign entities, as exemplified by the Articles of Confederation. James Madison, in Federalist , redefined it by arguing that the Constitution created a "compound Republic"—a national government with certain federal (state-representing) features. This became the modern understanding of federalism. Madison outlined criteria for this mixed character: founding/ratification was primarily federal, requiring three-quarters of states to ratify; the source of ordinary powers was mixed, with the House being national (elected by people) and the Senate federal (elected by state legislatures); the operation of government was national, as it acted directly on individuals; the extent of power was not wholly national, being limited by the enumeration of powers; and the amendment process was federal, requiring two-thirds of Congress and three-fourths of states.
Defense of Federalism (Case For)
The arguments in favor of federalism are numerous. Firstly, federalism protects liberty by decentralizing power, horizontally and vertically, which prevents tyranny by diffusing governmental authority. Secondly, it enhances popular accountability; the proximity of government to the people at state and local levels fosters better representation and engagement from voters. Thirdly, federalism promotes diversity in public policy, allowing states to tailor policies to local problems and circumstances, such as in education or crime reduction, thus preventing a "one-size-fits-all" national approach. Fourthly, it encourages innovation, as states can act as "laboratories for public policy," allowing diverse experiments whose successful outcomes can then be adopted nationally. Fifthly, federalism contributes to national effectiveness by preventing the national government from becoming overloaded and inefficient by delegating certain powers to states. Finally, it enhances civic virtue by keeping politics local, increasing citizen engagement and awareness of issues directly impacting them.
Case Against Federalism
However, there are also strong arguments against federalism. One concern is the tyranny of the majority; states, being smaller and more homogeneous, are more susceptible to majority factions and injustice, as demonstrated by segregation in cases like Brown v. Board of Education and the Civil Rights Act of . Secondly, federalism undermines national equality, leading to a "myriad of different state and local ordinances" that create confusion for citizens (e.g., differing marijuana laws, speeding fines, firearm transport laws across states). Thirdly, concerning competence, the Founders believed the national government would attract higher quality public servants due to its greater prestige and scope. Fourthly, in a technologically advanced and interconnected nation, few problems are purely local or regional; what affects one state often impacts others (e.g., hurricanes in the Gulf affecting national gas prices), making purely state-level solutions inadequate. Fifthly, policy activism can achieve desired public policy more efficiently at the national level (e.g., Civil Rights Act) rather than through negotiations with separate state legislatures. Lastly, historical experience shows that excessive state power led to disunion and Civil War, suggesting that federalism risks rekindling separatist tendencies.
The Commerce Clause: A Threat to Federalism
While the Framers originally agreed that the national government should regulate commerce due to state failures under the Articles, and it received little debate, the Commerce Clause later became the primary tool used by the national government to expand its power, regulating areas historically under state control.
U.S. v. E.C. Knight Co. (): This case involved Congress's attempt to break up a sugar refining monopoly under the Sherman Antitrust Act. The Court established a distinction for regulation, asserting that states regulate production and manufacturing (e.g., mining, sugar refinement), while the national government regulates commerce (trading, selling, and movement of goods). The Court distinguished between interstate commerce (across state lines), regulated by the national government, and intrastate commerce (within a state), regulated by states. It ruled that sugar refining was manufacturing (production), not commerce, thus limiting federal power to regulate it.
Hammer v. Dagenhart (): In this case, the Federal Child Labor Act of prohibited interstate commerce of goods produced by child labor. The Court ruled that child labor was a manufacturing issue, not commerce, so states (and parents like Dagenhart) could regulate it. The "harmful" nature of the production process did not, in the Court's view, make the goods themselves harmful in commerce.
In , faced with a conservative Supreme Court, FDR threatened to pack it with New Deal supporters, leading to a "switch in time that saved nine." This ultimately resulted in the Court becoming more amenable to federal regulation.
Wickard v. Filburn (): Farmer Filburn grew excess wheat for personal consumption, exceeding his Agricultural Adjustment Act (AAA) allotment. His argument was that his wheat was not entering commerce, so Congress could not regulate it. The Court, however, ruled that even personal consumption affected interstate commerce. It reasoned that if all farmers grew excess for personal use, it would cumulatively and substantially affect national wheat prices and the market. This case established the "Aggregate Effects Test," stating that Congress need only show a rational basis for believing a regulated activity has a substantial effect on interstate commerce, even considering future harm.
United States v. Lopez (): Congress enacted the Gun-Free School Zones Act of in response to school shootings, though the law was arguably unnecessary (states already prohibited guns in schools) and ineffective (minors were unaware of federal vs. state jurisdiction). Alfonso Lopez brought a gun to school, resulting in federal charges. In a 5-4 decision, Justice Rehnquist and the Supreme Court sought to rein in the Commerce Clause by developing a new, stricter "Lopez test." This test stipulated three criteria for Congress to regulate under the Commerce Clause: criterion, channels of interstate commerce (e.g., highways, bridges, rivers); criterion, instrumentalities of interstate commerce (things used in commerce, like cars, trucks, planes, even shipping boxes); and criterion, activities with a substantial effect on interstate commerce, where Congress must empirically demonstrate a substantial effect (removing the "rational basis" standard of Wickard). The Court ruled that a gun in a school zone met none of these criteria. The government's argument (that guns in schools lead to poor education, which affects future economic participation, thus affecting commerce) was deemed too attenuated. The law was declared unconstitutional under the Commerce Clause, marking a rare brake on Congress's Commerce Clause power, though the "substantial effect" test still leaves considerable room for federal action. Lopez's conviction was vacated, and he was subsequently able to join the Marine Corps.
Exam Review
The upcoming exam will be an online Canvas quiz covering material from Lycurgus up to and including the Commerce Clause cases. It will consist of approximately 5-6 ID (Identification) questions and 2-3 short answer questions. For ID questions, students need to define and explain the significance of a key term in 2-3 sentences. Short answer questions will require longer explanations, potentially combining multiple ID-level concepts. For study tips, students should focus on key terms, principles, and historical figures from notes and readings, understanding their definitions and significance, rather than obscure details. Answers should be direct and concise. Key terms for review include Faction, Trustee Model of Representation, Tacit Consent, Compound Republic (Federalist ), Economic Bill of Rights, Aggregate Effects Test (Wickard v. Filburn), Lopez Test (U.S. v. Lopez), Lincoln's definition of Liberty, and MLK's concept of Social Equality. The professor confirmed that Canvas Lockdown