Constitutional Foundations and Debates
2-1 The Problem of Liberty
Goal of the American Revolution
The American Revolution aimed primarily at achieving liberty.
It was not the first nor the last revolution with such a goal, but notably clear in its intent to alter the political order for the sake of liberty.
Subsequent revolutions had different objectives:
French Revolution (1789): Sought liberty, equality, and fraternity.
Russian Revolution (1917): Primarily focused on equality, with liberty being a lesser concern.
Chinese Revolution (culminating in 1949): Similar emphasis on equality over liberty.
Context of Independence
The Declaration of Independence (1776) was an effort by American colonists to safeguard traditional liberties believed to be their rights as British subjects. These liberties included:
Right to a fair judicial process with independent judges.
Freedom from British troops being forced to live in their homes.
Ability to trade without excessive restrictions.
Exemption from taxes imposed by a British Parliament where they had no representation.
For years prior to the War for Independence, many colonists thought their liberties could be preserved within the British Empire, but opinions shifted towards independence as a necessity.
By 1775, a significant number of colonists were convinced that independence was essential for securing their liberties.
Distrust of the English Constitution
Key to the public sentiment was a growing lack of trust in the English constitution, which was comprised of various laws, charters, and traditions.
Colonists saw continual violations of their rights under this constitution, identifying it as an inadequate safeguard against political power abuses.
Revolutionary leaders looked to explanations rooted in human nature, believing that ambitions and greed made people corrupt.
Colonists' Perspectives on Power
Many colonists perceived a natural inclination towards domination among political leaders, which fueled their distrust.
Notable figures criticized English politics:
John Adams: Criticized the corruption and decadence of English politics.
Patrick Henry: Condemned the “corrupt House of Commons.”
Alexander Hamilton: Used vivid language to describe England as a “worn-out hag.”
This aggressive rhetoric underscored the belief that English politicians, and politicians in general, tended toward corruption, thus explaining why the English constitution was ineffective.
Ideological Foundations of Liberty
The liberties the colonists fought for were thought to be universally understood and rested on a “higher law” of natural rights ordained by God.
John Dickinson articulated these rights as “born with us; exist with us; and cannot be taken away from us by any human power.”
Essential rights were generally perceived to include:
Life
Liberty
Property
Thomas Jefferson famously articulated these rights in the Declaration of Independence, altering property to the “pursuit of happiness.”
Nature of the Revolution
The American Revolution encompassed more than just military conflict; it represented a profound transformation in societal principles, opinions, and sentiments.
The revolution included a redefinition of political authority and the means to secure personal liberties, moving away from royal prerogative to a government that required consent from the governed.
Legitimate power must be derived from a written constitution and respect human liberty, which existed prior to government formation.
Legislative branches should hold supremacy over executive branches.
Adoption of Written Constitutions
In 1776, eight states enacted written constitutions, creating a trend that all former colonies eventually followed (except Connecticut and Rhode Island, which maintained colonial charters).
Most state constitutions included bills of rights affirming personal liberties, concentrating power in the hands of elected representatives, reflecting revolutionary ideas that were new and unprecedented at the time.
Challenges Post-Independence
A tumultuous period ensued following the Declaration of Independence up to the signing of the Constitution in 1787, marked by uncertainty and a lack of a strong national government.
George Washington led the war effort with inadequate national support and resources, relying on ad hoc arrangements.
Economic struggles emerged, with communities left devastated post-war and many veterans returning to debts and taxation burdens.
Articles of Confederation
The Articles of Confederation (effective 1781) created a weak national government:
Functioned as a “league of friendship” between states, with no power to levy taxes or regulate commerce.
Each state retained its sovereignty, with one vote per state regardless of size, requiring nine states to pass measures.
Congress had limited powers, including making peace and coining money, but faced significant operational challenges.
No national judicial system existed to mediate disputes among states.
Amendments to the Articles required unanimous consent from all thirteen states, limiting adaptability.
2.2
The Constitutional Convention
Overview of the Convention
The Constitutional Convention was held in Philadelphia, with delegates gathering to address the issues of the Articles of Confederation.
The session began as a revision meeting but resulted in the creation of a completely new constitution.
Delegates were aware of the existing issues within the confederacy but struggled to reach a consensus on solutions.
The primary goal remained the protection of life, liberty, and property, as it had been since 1776.
Lessons of Political History
Many delegates, including James Madison, examined ancient and modern political histories to find viable governmental models.
Madison read works on confederacies from ancient Greece and the more modern United Netherlands, as well as the histories of Switzerland and Poland, and the Roman republic.
Conclusion by Madison: No existing model was suitable; history offered "beacon lights" that warned against failure but did not provide clear paths to success.
Identified key problems: confederacies are often too weak and fail due to internal disputes, while stronger governments can infringe on citizen liberties.
State Constitutions
Pennsylvania Constitution
Adopted in 1776; very democratic in structure.
Featured a unicameral legislature (the Assembly) elected annually.
No executive role like a governor; only an Executive Council with limited powers.
Resulted in adverse effects: disenfranchisement of certain groups (e.g., Quakers), abuse of judicial processes, and lack of jury trials.
Seen by some (like Thomas Paine) as an ideal representation of popular rule, but criticized by others for potential tyranny due to power centralization.
Massachusetts Constitution
Adopted in 1780 and considered less democratic.
Clear separation of powers across branches of government.
Included provisions for a directly elected governor with veto powers over the legislature.
Judges served for life, and restrictions were placed on voting eligibility based on property ownership and religious affiliation.
Shays’s Rebellion
In January 1787, ex-Revolutionary War soldiers led by Daniel Shays rebelled against high taxes and debt pressures in Massachusetts.
They successfully prevented court sessions in western Massachusetts, prompting leaders to fear governmental collapse.
The governor lacked resources to quell the rebellion through legal means or state militia, resorting instead to private fundraising for a volunteer army.
The rebellion heightened concerns among delegates about the fragility of state governments and the necessity of a stronger central government.
Differing views on the rebellion: George Washington urged immediate action to address grievances, while Thomas Jefferson viewed rebellion as a form of civic engagement.
The Framers of the Constitution
The convention gathered 55 delegates, although only about 30 participated regularly; Rhode Island did not send delegates.
The session took place during a notably hot summer, and debates were held in secrecy to ensure confidentiality.
Key figures included:
George Washington, presiding officer, characterized by dignity despite physical ailments.
James Madison, known for intellect rather than oratory, played a crucial role in drafting proposals and taking notes.
Benjamin Franklin, older and revered, offered wise counsel balanced with wit.
Alexander Hamilton, young but ambitious, noted for significant contributions and strong organizational skills.
The convention did not merely revise the Articles of Confederation but produced a wholly new constitution, making it the oldest written national constitution.
Philosophical Foundations and Challenges
Delegates believed in the necessity of balancing order with liberty following their experiences under British rule and their commitment to liberty as a natural right (inspired by John Locke).
Locke argued against an all-powerful government as proposed by Thomas Hobbes, positing instead that government requires consent from the governed and should protect life, liberty, and property.
Madison warned against unrestrained democracy, which could lead to the tyranny of the majority, and noted the dangers in both too strong or too weak a government.
The Virginia Plan
Presented early in the convention, proposing a robust national government structured into three branches: legislative, executive, and judicial.
It included a bicameral legislature with:
The lower house directly elected by the people.
The upper house chosen by the lower house.
Proposed a national executive elected by the legislature, with a council of revision to veto legislative acts.
The national legislature would hold supreme powers on issues not handled by states and could veto state laws.
The New Jersey Plan
Presented to protect smaller states from being outvoted; aimed to amend, rather than replace, the Articles of Confederation.
Proposed a single legislative body where each state would have one vote.
Encountered resistance due to the already established framework favoring a stronger national government initiated by the Virginia Plan.
Debate highlighted the contrast between support for proportional representation versus equal state representation.
The Great Compromise
A crucial resolution balancing interests of large and small states leading to a bicameral legislature:
House of Representatives: Based on population.
Senate: Two senators from each state, chosen by state legislatures.
This compromise was essential for ensuring that both small and large states could have a voice in legislation, fostering support for a stronger national government.
Further debates led to arrangements for electing the president and federal judiciary.
Finalization of the Constitution
Work continued until the final draft was presented on August 6, which underwent further debate and adjustments until September 17, when it was approved by 12 states.
Notable absentees included prominent figures like Thomas Jefferson and John Adams, while some dissenters chose not to sign.
Summary of Key Constitutional Features
Preamble and seven articles outline the structure, powers, and processes of government.
Introduced a Bill of Rights, later amendments addressing issues such as voting rights and the prohibition of practices likened to tyranny.
2.3
2-3 Ratification Debates
Historical Context of the Constitution
The Constitution has been debated over its role in creating a democratic government.
The Framers did not aim for a "pure democracy" (direct rule by the people) due to:
Large size of the country and distances between settlements making direct participation impractical.
Concerns over government being excessively influenced by temporary popular passions.
Potential insecurity of minority rights under direct majority rule.
Framers’ Intent
Created a republic, a government based on representation rather than direct citizen participation.
Emphasis on:
Government mediating rather than mirroring popular views.
Elected officials representing majority opinions rather than just registering them.
Assumptions about citizens:
Lack of time, information, interest, or expertise to make informed political choices.
Suspicions that even educated individuals could be easily swayed by demagogues exploiting fears and biases.
Representative Democracy
The Framers acknowledged:
While majority opinion should influence policies, civil rights and liberties must not hinge on it.
Representative democracy minimizes risks of abuse by both tyrannical majorities and self-serving officeholders.
Philosophical Influences on the Framers
Aristotle’s View:
Defined democracy as rule by the many, often poor.
Warned against decay into oligarchy or tyranny; advocated for a mixed regime combining democracy and oligarchy.
John Locke’s Influence:
Advocated for government based on limited powers and popular consent.
Believed in state of nature where people could govern themselves but needed a government to protect property and self-interest.
Suggested separation of powers to prevent majority oppression of minorities.
Creation of the Republic (1787)
Framers aimed to protect freedom and private property through a moderate regime that balanced individual rights with governmental power.
Electoral Arrangements:
Direct elections for House of Representatives.
State legislatures to choose senators.
Electoral College for presidential elections.
Compromise essential for ratification, particularly addressing the small state's fears of large state dominance.
Major and State Majorities
Majority rule acknowledged, but essential to consider both voter and state majorities.
Judicial review emerged as a critical check on legislative actions through the Supreme Court's power to declare laws unconstitutional.
Amendment Process
An amendment can be proposed:
By a two-thirds vote in both Congressional houses.
By a national convention called at the request of two-thirds of state legislatures.
To be ratified, amendments need approval from three-fourths of states, either through state legislatures or special conventions.
Only 27 amendments have survived this process since its inception.
Defining Democracy
Democracy in the context of the Constitution is a form of representative government deriving authority from the people, with evolving degrees of popular consent since 1787.
Includes various arrangements, contrasting with direct democracy where one assembly is chosen by direct election.
Key Principles of American Democracy
Based on:
Separation of Powers: Legislative, executive, and judicial powers are held by separate branches of government.
Federalism: Power is divided between national and state governments.
Each branch of government has specific powers and checks others.
Powers of Government
Delegated Powers (national government exclusive):
Printing money, declaring war, making treaties.
Reserved Powers (state exclusive):
Licensing and regulating commerce within a state.
Concurrent Powers (shared):
Collecting taxes, building roads, maintaining courts.
Human Nature’s Influence on Governance
The Framers' experiences shaped their understanding of human self-interest in politics.
Many believed people could not be relied upon to cultivate virtue necessary for good governance.
Madison advocated for designing a government that channels self-interest rather than attempting to improve human virtue.
Checks and Balances
Definition: A system where different branches of government can limit one another’s powers.
Congress Checks President:
Refusal to pass bills, overriding vetoes, impeachment powers, and approving appointments.
Congress Checks Courts:
Changing court systems, impeaching judges, approving nominees.
President Checks Congress:
Veto power over legislation.
Courts Check Congress and President:
Declaring laws and presidential actions unconstitutional.
Federalism as a Check
States and national governments can balance and limit each other's powers, ensuring protection of rights.
Factions within diverse interests deter any single entity from dominating power.
Constitution and Personal Liberties
The Constitution was ratified by conventions, enabling a democratic approach that bypassed existing state legislatures.
The Federalists (supporters) vs. Antifederalists (opponents) offered contrasting views on liberty:
Antifederalists believed liberty could only thrive in small republics.
Critique of a distant strong national government threatening rights.
Madison’s Arguments in Federalist Papers
Argued that liberty was safer in larger republics where diverse interests would temper majority rule.
Predicted that larger coalitions would form based on justice and the common good.
The Need for a Bill of Rights
The absence of a Bill of Rights was a major contention point.
Although some liberties were guaranteed in the original Constitution, such as:
Writ of habeas corpus, prohibition of ex post facto laws, and the right to trial by jury.
The Ratification Struggle
Many states ratified only for the promise of a Bill of Rights, leading to eventual adoption of the first ten amendments in 1791.
The Bill of Rights addressed various civil liberties and powers of government, though less directly related to criticisms made during ratification.
Constitution’s Approach to Slavery
Slavery was not mentioned explicitly in the Constitution, despite significant representation of enslaved individuals in the population.
The three-fifths compromise counted a portion of enslaved people for representation purposes, vastly impacting political power.
The Constitution allowed for slavery to persist, as compromising on slavery was seen as necessary for national unity and ratification.
Long-term Consequences of Compromising on Slavery
Created lasting political and social ramifications, ultimately contributing to tensions leading up to the Civil War.
2.4
Democracy and the Constitution: Post-Ratification Debates
The Framers of the Constitution
The Framers were not idealized figures; they had political opinions, economic interests, and human flaws.
It is misleading to claim their motivations were purely altruistic or solely self-serving.
They operated from a mix of motives, with economic interests being limited in the context of their deliberations.
Economic Interests
The economic backgrounds of the Framers varied significantly:
Some were wealthy while others were not.
Some owned slaves; others did not.
Some were creditors, while others faced significant debts.
Charles Beard’s Argument (1913):
Beard's work, "An Economic Interpretation of the Constitution," suggested that the wealthier urban and commercial classes favored the Constitution to protect their economic interests, particularly those who held government IOUs from the Revolutionary War.
The 1950s Response:
Historians countered Beard, arguing that the Constitution could not be understood solely through the economic interests of its Framers.
Notable delegates, like Elbridge Gerry and George Mason, opposed the Constitution despite their wealth.
Key supporters, like James Madison and James Wilson, had modest means or were deeply in debt.
1980s Findings:
New analysis by economists using advanced statistical techniques showed that economic interests influenced Framers' votes but not predominantly; state economic conditions carried more weight.
Connection to State Interests:
Delegates represented their state’s interests more than personal economic interests.
Except for slavery, they typically did not act on their economic self-interests.
At state ratifying conventions, the interests of different delegate groups influenced ratification votes:
Merchants and wealthy landowners tended to favor ratification.
Small farmers were more mixed, sometimes unanimously backing ratification.
Voter Inclusion:
Despite limitations (e.g., women, Black people, Native Americans excluded), the ratification process allowed many adult White males the right to vote for delegates.
By late 18th-century standards, this process was relatively democratic.
The Constitution and Equality
The debate on public good revealed two perspectives:
Federalists: argued for a balanced national government to ensure liberty, order, and progress.
Antifederalists: believed that liberty would suffer under a distant, powerful government and favored decentralization.
Contemporary Critique:
Today, some argue the Constitution creates a government too weak to resist special interests and societal inequality.
Shifts in Understanding Equality:
Jefferson and Madison's perspective held that citizens differed naturally and governmental power needed limits to prevent inequalities from arising.
Modern view sees inequality as a byproduct of market operations that requires government intervention for corrective action.
Tension exists between political equality and socio-economic disparities, where government should counteract wealth disparity.
Constitutional Reform: Modern Views
The Constitution has faced debates over potential improvements since its ratification, often alienating public engagement.
Popular Support:
Many esteem the Constitution despite ignorance of its details, prompting caution in proposing wholesale revisions.
1980s Proposals:
Renewed calls for constitutional reforms arose addressing issues like political polarization, social inequality, and global roles.
Critics’ Categories:
Federal government perceived as too weak or too strong.
Reducing the Separation of Powers
Critics argue the separation of powers leads to gridlock, hindering national leadership in responding to challenges, such as:
International leadership crises.
Legislative delays hampering economic and environmental initiatives.
Call for Enhanced Presidential Authority:
To lessen political friction and promote accountability for policy outcomes.
Proposed Changes:
Allowing president to appoint cabinet members from Congress.
Permitting presidents to dissolve Congress and call special elections.
Special elections for presidents facing a loss of confidence.
Require presidential and congressional candidates to run as a team.
Implementing a single six-year term for presidents.
Lengthening House Representative terms from 2 to 4 years.
Defense of Current System:
Critics argue current congressional scrutiny can enhance policies and that oversight ensures accountability.
Suggested reforms might produce unintended consequences.
Limiting the National Government
Some critics assert the government has expanded too much, advocating constitutional amendments to:
Limit tax revenue or enforce a balanced budget.
Mathematical Concept:
Amendments could permit a supermajority to override limits, with exceptions for wartime.
Political Dynamics:
Citizen perspectives can lead to disjunction where individual interests conflict with the common good, compelling public policy not aligned with broader, long-term values.
Proposed Remedial Strategies:
Constitutional amendments to restrain tax levels or enact line-item veto authority.
Historical Context of Taxation:
Federal income tax viewed as necessary and positive; rates have fluctuated historically; potential reforms continue to generate debates.
Judicial Power
There is concern over the judicial branch's power, with some advocating limitations on these powers to protect citizens’ rights.
Amending the Constitution is viewed as a viable method for addressing controversial court interpretations.
Conclusion: Ongoing Debate
Evaluating constitutional critiques prompts significant questions:
How effective and adaptable is the Constitution after more than 235 years?
How does it measure against other democratic frameworks?
Individuals may disagree on practical outcomes, requiring deep analysis of historical and contemporary governance structures.
The importance of understanding governmental processes to advocate effectively for desired changes.
Women and the Constitution
The original Constitution did not mention women, denying them voting rights until the Nineteenth Amendment in 1920.
The document’s language used masculine pronouns historically but was interpreted to equally extend rights to all citizens.
Notable excerpts from the Constitution illustrate the generality of rights without gendered restrictions, although state laws restricted women's rights.
Conclusion:
The Constitution permitted access without explicit language, allowing women to hold office and later gain voting rights without necessitating changes to existing constitutional language.
Proposal for Constitutional Convention
Recent discussions in the Pennsylvania legislature for constitutional amendments prompt various considerations.
Arguments for and against focusing on approaches regarding term limits for Congress and the electoral college.
Weighing the implications of past conventions against modern expectations in an age of media scrutiny and larger participatory frameworks.
Importance of careful consideration around constitutional processes, changes, and intended effects on governance.