American GovernmentAmerican Government

Constitutions and the Constitutions and the

U.S. ConstitutionU.S. Constitution

Constitution: RootConstitution: Root

The term constitution comes from The term constitution comes from the Latin the Latin constitutioconstitutio, which refers to , which refers to issuing any important law--usually by issuing any important law--usually by the Roman emperor. the Roman emperor.

Later, the term was widely used in Later, the term was widely used in canon law to indicate certain canon law to indicate certain relevant decisions, mainly from the relevant decisions, mainly from the pope.pope.

Constitution: General DefinitionConstitution: General Definition

1.1. The set of rules prescribing the The set of rules prescribing the political process government political process government institutions must follow to reach institutions must follow to reach and enforce collective agreementsand enforce collective agreements

2.2. Written or unwritten guideline Written or unwritten guideline outlining the formal rules and outlining the formal rules and institutions of government and the institutions of government and the limits placed on its powerslimits placed on its powers

Constitution CharacteristicsConstitution Characteristics Most constitutions seek to regulate the Most constitutions seek to regulate the

relationship between institutions of the state, in a relationship between institutions of the state, in a basic sense the relationship between the basic sense the relationship between the executive, legislature and the judiciary--but also executive, legislature and the judiciary--but also the relationship of institutions within those the relationship of institutions within those branches. branches.

Most constitutions also attempt to define the Most constitutions also attempt to define the relationship between individuals and the state, relationship between individuals and the state, and to establish the broad rights of individual and to establish the broad rights of individual citizens. citizens.

It is thus the most basic law of an area from It is thus the most basic law of an area from which all the other laws and rules are which all the other laws and rules are hierarchically derived; in some areas it is in fact hierarchically derived; in some areas it is in fact called "Basic Law".called "Basic Law".

Constitution ClassificationsConstitution Classifications Three Classifications of ConstitutionsThree Classifications of Constitutions

– CodifiedCodified– Partially CodifiedPartially Codified– UncodifiedUncodified

A codified constitution is one that is A codified constitution is one that is contained in a single document, which is contained in a single document, which is the single source of constitutional law in a the single source of constitutional law in a state. state.

An uncodified constitution is one that is An uncodified constitution is one that is not contained in a single document, not contained in a single document, consisting of several different sources, consisting of several different sources, which may be written or unwritten. which may be written or unwritten.

Classifications (con’t)Classifications (con’t)

The Constitution of Australia is an example The Constitution of Australia is an example of a partially codified constitution in which of a partially codified constitution in which constitutional law mainly derives from a constitutional law mainly derives from a single written document, but other written single written document, but other written documents are also considered part of the documents are also considered part of the constitution. constitution.

The Constitution of the United Kingdom is The Constitution of the United Kingdom is an example of an uncodified constitution an example of an uncodified constitution which consists of both written and which consists of both written and unwritten sources and has no single unwritten sources and has no single written fundamental document.written fundamental document.

Supreme Law of the LandSupreme Law of the Land

As the ‘basic’ of ‘fundamental’ law of the As the ‘basic’ of ‘fundamental’ law of the country, the Constitution is the supreme country, the Constitution is the supreme law of the land.law of the land.

Thus any state enactments, federal Thus any state enactments, federal statutes, regulatory policies, etc. are statutes, regulatory policies, etc. are subservient to the Constitution and are subservient to the Constitution and are null and void when they conflict with the null and void when they conflict with the Constitution.Constitution.

From this principle stems the power of From this principle stems the power of ‘judicial review.’‘judicial review.’

U.S. ConstitutionU.S. Constitution

Two general pointsTwo general points– The Constitution was founded in The Constitution was founded in

philosophical principlesphilosophical principles

– The Constitution was founded in a series The Constitution was founded in a series of political compromisesof political compromises

Philosophy in the ConstitutionPhilosophy in the Constitution The Framers were versed in the ancient Greek The Framers were versed in the ancient Greek

and Roman philosophical texts (Aristotle, Plato, and Roman philosophical texts (Aristotle, Plato, etc.)etc.)

The Framers were strongly influenced by 17The Framers were strongly influenced by 17thth and and 1818thth century liberal philosophers on economics century liberal philosophers on economics and government (Adam Smith, David Hume, John and government (Adam Smith, David Hume, John Locke, the Baron de Montesquieu, etc.)Locke, the Baron de Montesquieu, etc.)

As such the Constitutional framework represented As such the Constitutional framework represented conscious philosophic choices:conscious philosophic choices:– Democracy as opposed to monarchy or an autocratic Democracy as opposed to monarchy or an autocratic

formform– Representative rather than direct democracyRepresentative rather than direct democracy– Encoded protection of individual libertyEncoded protection of individual liberty

Constitutional PoliticsConstitutional Politics

The Constitutional Convention was a political The Constitutional Convention was a political convention assembled to solve a political convention assembled to solve a political problemproblem

Formulating the Constitution was a radical Formulating the Constitution was a radical departure from their intended purposedeparture from their intended purpose

The document represents compromises among The document represents compromises among the assembled representatives of states with the assembled representatives of states with diverse interestsdiverse interests– North vs. SouthNorth vs. South– Big states vs. Little statesBig states vs. Little states– Agriculture vs. IndustryAgriculture vs. Industry– Slave states vs. Non-slave statesSlave states vs. Non-slave states

CompromisesCompromises

1.1. Bicameral Legislature and Bicameral Legislature and representation – compromise representation – compromise between big states and small statesbetween big states and small states

2.2. The 3/5ths Compromise – between The 3/5ths Compromise – between the slave states and the non-slave the slave states and the non-slave statesstates

Alternative ExplanationsAlternative Explanations

Pluralism: the constitution was a Pluralism: the constitution was a compromise among interested groups compromise among interested groups (farmers, land-owners, separatists, (farmers, land-owners, separatists, businessmen, etc.)businessmen, etc.)

Elite Theory: the constitution was a Elite Theory: the constitution was a document founded to protect rich land-document founded to protect rich land-ownersowners– Charles A. Beard: An Charles A. Beard: An Economic Interpretation Economic Interpretation

of the Constitution of the United Statesof the Constitution of the United States – ““the Constitution [is] an instrument of class the Constitution [is] an instrument of class

exploitation” exploitation”

The Federalist PapersThe Federalist Papers Combined Philosophy & PoliticsCombined Philosophy & Politics The Federalist PapersThe Federalist Papers are a series of 85 articles are a series of 85 articles

arguing for the ratification of the United States arguing for the ratification of the United States Constitution. They were first published serially in Constitution. They were first published serially in New York City newspapers. A compilation, called New York City newspapers. A compilation, called The FederalistThe Federalist, was published in 1788, was published in 1788

Authors wrote under the Authors wrote under the nom de plumenom de plume of of "Publius", in honor of Roman consul Publius "Publius", in honor of Roman consul Publius Valerius Publicola.. Valerius Publicola..

Most important & influential Federalist Paper was Most important & influential Federalist Paper was Federalist #10 dealing with the problem of Federalist #10 dealing with the problem of factionfaction

Federalist 10Federalist 10 Federalist No. 10 continues the discussion of a question Federalist No. 10 continues the discussion of a question

broached in Hamilton's Federalist No. 9. Hamilton had broached in Hamilton's Federalist No. 9. Hamilton had addressed the destructive role of addressed the destructive role of faction in breaking apart a in breaking apart a republic republic

Federalist #10: Federalist #10: The Union as a Safeguard Against The Union as a Safeguard Against Domestic Faction and Insurrection." Domestic Faction and Insurrection."

He defines a faction as He defines a faction as – "a number of citizens, whether amounting to a minority or "a number of citizens, whether amounting to a minority or

majority of the whole, who are united and actuated by some majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of of other citizens, or to the permanent and aggregate interests of the community."the community."

Federalist #10 Provided the justification for a Federalist #10 Provided the justification for a republican form of government rather than a direct republican form of government rather than a direct democracy.democracy.– In a direct democracy, there is no check against the In a direct democracy, there is no check against the

tyranny of the temporary majority against the minority tyranny of the temporary majority against the minority (see Socrates for piece de resistance)(see Socrates for piece de resistance)

Federalist #10Federalist #10

Faction cannot be suppressed without Faction cannot be suppressed without crushing liberty, and creating a crushing liberty, and creating a homogenous society is impractical and homogenous society is impractical and antipathetic to liberty. antipathetic to liberty.

Hence faction must be controlled: Hence faction must be controlled: harnessed to serve the stateharnessed to serve the state

Madison argues a small democracy cannot Madison argues a small democracy cannot avoid the tyranny of a majority factionavoid the tyranny of a majority faction

Hence a large representative republic is Hence a large representative republic is necessary to protect against factionnecessary to protect against faction

7 Founding Principles of the 7 Founding Principles of the ConstitutionConstitution

1.1. RepresentationRepresentation

2.2. Popular RulePopular Rule

3.3. Limited GovernmentLimited Government

4.4. Separation of PowersSeparation of Powers

5.5. FederalismFederalism

6.6. Federal SupremacyFederal Supremacy

7.7. Judicial ReviewJudicial Review

RepresentationRepresentation

Developed out of the theories of Hobbes & Developed out of the theories of Hobbes & LockeLocke

As Madison argues, representation is a As Madison argues, representation is a practical necessity given the size of the practical necessity given the size of the republicrepublic

Hinged on:Hinged on:– Developing diverse and competing interestsDeveloping diverse and competing interests– The nascent concept of government as umpireThe nascent concept of government as umpire

Representation is geographic-based under Representation is geographic-based under the Constitutionthe Constitution

Popular RulePopular Rule Ultimate authority rests with the people Ultimate authority rests with the people

(the people are sovereign per Locke)(the people are sovereign per Locke)– Preamble: “We the People of the United Preamble: “We the People of the United

States…”States…”– 1010thth Amendment: “The powers not delegated Amendment: “The powers not delegated

to the United States by the Constitution, nor to the United States by the Constitution, nor prohibited by it to the States, are reserved to prohibited by it to the States, are reserved to the States respectively, or to the people.”the States respectively, or to the people.”

All government officials are responsible to All government officials are responsible to the people under the Constitutionthe people under the Constitution– Congress, the most directly responsive to the Congress, the most directly responsive to the

people, is the 1people, is the 1stst branch addressed branch addressed Grew from dislike of the KingGrew from dislike of the King

Popular Rule (con’t)Popular Rule (con’t)

The colonies had a long history of popular The colonies had a long history of popular rulerule– colonial legislatures popularly electedcolonial legislatures popularly elected– 1750, they were more popular and powerful 1750, they were more popular and powerful

than most governors, who were appointed by than most governors, who were appointed by the crownthe crown

– only 3 of 13 governors served more than 1 only 3 of 13 governors served more than 1 year termyear term

– only 1 governor had veto poweronly 1 governor had veto power– most colonial legislatures dealt directly with most colonial legislatures dealt directly with

British ParliamentBritish Parliament

Limited GovernmentLimited Government

Constitution is document of specific, Constitution is document of specific, enumerated powersenumerated powers– Government is empowered to do only certain Government is empowered to do only certain

thingsthings Concept developed from writings of John Concept developed from writings of John

Locke & Adam SmithLocke & Adam Smith– Smith: Smith: An Inquiry into the Nature and Causes An Inquiry into the Nature and Causes

of the Wealth of Nationsof the Wealth of Nations Experience with assertive monarchsExperience with assertive monarchs Frontier distrust of politiciansFrontier distrust of politicians

Limited Government (con’t)Limited Government (con’t) Not satisfied with the checks in the original Not satisfied with the checks in the original

Constitution, first Congress amends it: Bill of Constitution, first Congress amends it: Bill of RightsRights

1010thth Amendment: power remains with the people Amendment: power remains with the people except for those powers specifically delegated by except for those powers specifically delegated by the Constitutionthe Constitution

Caveat: A tension between this founding Caveat: A tension between this founding principle and the demands of the 20principle and the demands of the 20thth century century emergesemerges

Door was left open for the expansion of federal Door was left open for the expansion of federal role in the economy and society:role in the economy and society:– Article 1, Section 8, Congress shall “make all laws Article 1, Section 8, Congress shall “make all laws

necessary and proper” to fulfill enumerated necessary and proper” to fulfill enumerated responsibilities.responsibilities.

Separation of Powers: Separation of Powers: Checks & BalancesChecks & Balances

Baron de Montesquieu’s Baron de Montesquieu’s trias politicatrias politica or “three branches of or “three branches of government” government”

Argued for specifically in Federalist #51: “The Structure of Argued for specifically in Federalist #51: “The Structure of the Government Must Furnish the Proper Checks and the Government Must Furnish the Proper Checks and Balances Between the Different Departments“ by Madison:Balances Between the Different Departments“ by Madison:

““In a single republic, all the power surrendered by the people In a single republic, all the power surrendered by the people is submitted to the administration of a single government; is submitted to the administration of a single government; and the usurpations are guarded against by a division of and the usurpations are guarded against by a division of the government into distinct and separate departments. In the government into distinct and separate departments. In the compound republic of America, the power surrendered the compound republic of America, the power surrendered by the people is first divided between two distinct by the people is first divided between two distinct governments, and then the portion allotted to each governments, and then the portion allotted to each subdivided among distinct and separate departments. subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. Hence a double security arises to the rights of the people. The different governments will control each other, at the The different governments will control each other, at the same time that each will be controlled by itself.” same time that each will be controlled by itself.”

Checks & BalancesChecks & BalancesBRANCHESBRANCHES POWERSPOWERS EXECUTIVE EXECUTIVE

CHECKCHECKLEGISLATIVE LEGISLATIVE

CHECKCHECKJUDICIALJUDICIAL

CHECKCHECK

ExecutiveExecutive Sole Power to Sole Power to Wage WarWage War

Civilian and Civilian and military chains military chains of command of command constrain low-constrain low-level executive level executive officials to obey officials to obey the policies of the policies of higher-ups. higher-ups.

Power to declare Power to declare war war

May declare May declare actions of the actions of the executive to be executive to be illegal and/or illegal and/or uncon.l uncon.l

LegislativeLegislative Power to write Power to write laws laws Power to enact Power to enact taxes, authorize taxes, authorize borrowing, and borrowing, and set the budget set the budget

May veto laws May veto laws (but this may be (but this may be overriddenoverriddenMay refuse to May refuse to enforce certain enforce certain laws laws May refuse to May refuse to spend allocated spend allocated moneymoney

Powers internal to Powers internal to the legislature are the legislature are split between its split between its two houses, the two houses, the Senate and the Senate and the House of House of Representatives.Representatives.

May declare May declare laws uncon. laws uncon. and and unenforceable unenforceable Determines Determines which laws which laws apply to any apply to any given case given case

JudiciaryJudiciary Sole power to Sole power to interpret the law interpret the law and apply it to and apply it to particular particular disputes disputes

Responsibility Responsibility to appoint to appoint judges judges Power to grant Power to grant pardonspardons

Power to Power to determine the size determine the size and structure of the and structure of the courts courts Power to Power to determine budgets determine budgets of the courts of the courts

May only rule May only rule in cases of an in cases of an actual dispute actual dispute brought brought between actual between actual petitioners petitioners

Checks & BalancesChecks & Balances Republican form of Government (Federalist #10)Republican form of Government (Federalist #10) A Bill of RightsA Bill of Rights

– to secure certain individual rights against the to secure certain individual rights against the governmentgovernment

Federalism (again #10)Federalism (again #10)– Division of power between state and federal Division of power between state and federal

governments guards against any one faction taking overgovernments guards against any one faction taking over Division of government into three branches Division of government into three branches

– (executive, legislature, & judiciary) as well as different (executive, legislature, & judiciary) as well as different terms and different constituencies for eachterms and different constituencies for each

CAVEAT: Are Powers *really* separate? CAVEAT: Are Powers *really* separate? – Separate Branches, Shared PowersSeparate Branches, Shared Powers

FederalismFederalism Special case of the separation of powers: Special case of the separation of powers:

division of power between state and division of power between state and national governmentsnational governments

Neither can terminate the other (both Neither can terminate the other (both have a constitutional right to existence)have a constitutional right to existence)

Developed from the writings of Developed from the writings of Montesquieu and David HumeMontesquieu and David Hume

Provided the security of Hobbes’s Provided the security of Hobbes’s Leviathan state with the democratic Leviathan state with the democratic prospects of the Athenian city-stateprospects of the Athenian city-state

Also a practical necessity following Also a practical necessity following RevolutionRevolution

Federalism & BicameralismFederalism & Bicameralism

A.A. The Basis of Representation: The Basis of Representation: Population vs. State autonomyPopulation vs. State autonomy– 1.1. Virginia PanVirginia Pan– 2.2. New Jersey PlanNew Jersey Plan

No real philosophical basis for No real philosophical basis for bicameralism: political compromise bicameralism: political compromise between the two plans.between the two plans.

The PlansThe PlansVIRGINIA PLANVIRGINIA PLAN NEW JERSEY PLANNEW JERSEY PLAN

Two chamber legislature, Two chamber legislature, representation based on state representation based on state populationpopulation

Single-house chamber; equal Single-house chamber; equal representation for each state representation for each state regardless of populationregardless of population

Lower chamber of legislature Lower chamber of legislature elected by the citizenry; upper elected by the citizenry; upper chamber, executive, and courts chamber, executive, and courts elected by the lower houseelected by the lower house

Legislature has same power as Legislature has same power as under Articles, with added under Articles, with added authority to levy taxes and authority to levy taxes and regulate commerce; can exercise regulate commerce; can exercise supremacy clause over state supremacy clause over state legislationlegislation

Legislature can make any law and Legislature can make any law and veto any state legislationveto any state legislation

Plural executive can be removed Plural executive can be removed by legislature (on petition of a by legislature (on petition of a majority of states); courts majority of states); courts appointed by executiveappointed by executive

Council of Revision ( composed of Council of Revision ( composed of executive and court) can veto executive and court) can veto legislation, but legislature can legislation, but legislature can override by majority voteoverride by majority vote

Supreme Court hears appeals in Supreme Court hears appeals in limited number of caseslimited number of cases

Bicameralism continuedBicameralism continued

Madison realized that the bicameral Madison realized that the bicameral legislature solves some of the problems legislature solves some of the problems that the nation was encountering.that the nation was encountering.

He wanted it to be reflective of the He wanted it to be reflective of the people’s will, but he also wanted, to a people’s will, but he also wanted, to a certain extent, a detachment from the certain extent, a detachment from the peoplepeople

The solution was having the House’s The solution was having the House’s representation based on population and representation based on population and the Senate representation based on the the Senate representation based on the States.States.

House DividedHouse Divided

In the House, you have to run for office In the House, you have to run for office every 2 years and entire house is up for every 2 years and entire house is up for contention.contention.

In the Senate, you have to run for office In the Senate, you have to run for office every 6 years, and only 1/3 of the every 6 years, and only 1/3 of the Senators are up for re-election.Senators are up for re-election.

The Senate was intended to be a more The Senate was intended to be a more ‘deliberative’ body whereas the House was ‘deliberative’ body whereas the House was supposed to be most responsive to the supposed to be most responsive to the people.people.

Federal SupremacyFederal Supremacy One nation rather than 13 coloniesOne nation rather than 13 colonies Adopted as a resolution to the collective action Adopted as a resolution to the collective action

problems inherent to the institution of problems inherent to the institution of government under the Articles of Confederationgovernment under the Articles of Confederation– adopted March 1781adopted March 1781– no president, no Supreme Courtno president, no Supreme Court– in unicameral legislature, each state had one votein unicameral legislature, each state had one vote– even small matters required 9/13 vote (almost 70%)even small matters required 9/13 vote (almost 70%)– large matters required unanimitylarge matters required unanimity– most important --- national government could not most important --- national government could not

directly touch peopledirectly touch people relied on states for taxes, army, navy, etc.relied on states for taxes, army, navy, etc.

Fed Supremacy (con’t)Fed Supremacy (con’t)

Collective action and other problems Collective action and other problems inherent to the system became intractableinherent to the system became intractable– Who owned the land west of the of the Who owned the land west of the of the

Allegheny Mountains? VA or PA?Allegheny Mountains? VA or PA?– Tariffs created barriers to economic progress Tariffs created barriers to economic progress

between the statesbetween the states– How would troops be fed? Clothed?How would troops be fed? Clothed?– States facing internal revoltStates facing internal revolt

Shay’s Rebellion – no standing army to respondShay’s Rebellion – no standing army to respond

Constitution gave national government Constitution gave national government authority over people and statesauthority over people and states

Judicial ReviewJudicial Review What institution is final arbiter of the meaning of What institution is final arbiter of the meaning of

the Constitution?the Constitution? Constitution implies Court has this power:Constitution implies Court has this power:

– Article III, section 2: "The judicial power shall extend to Article III, section 2: "The judicial power shall extend to all Cases, in Law and Equity, arising under this all Cases, in Law and Equity, arising under this Constitution....“Constitution....“

Federalist Papers Explicit:Federalist Papers Explicit:– whenever a particular [law] contravenes the whenever a particular [law] contravenes the

Constitution, it will be the duty of the [courts] to adhere Constitution, it will be the duty of the [courts] to adhere to the latter and disregard the former.“ (N.B. A.H. to the latter and disregard the former.“ (N.B. A.H. speaking)speaking)

Derives from the notion of the social contract, Derives from the notion of the social contract, which like other contracts needs to be interpreted which like other contracts needs to be interpreted by courtsby courts

Ratification StruggleRatification Struggle

Constitution had to be ratified by 9 out of Constitution had to be ratified by 9 out of the 13 colonies in order to passthe 13 colonies in order to pass

Ratification of the Constitution was by no Ratification of the Constitution was by no means certain.means certain.

A divide of interests existed between A divide of interests existed between Federalists and Anti-FederalistsFederalists and Anti-Federalists– Federalists: large costal stages, commercial Federalists: large costal stages, commercial

interestsinterests– Anti-Federalists: smaller rural states, Anti-Federalists: smaller rural states,

agricultural interestsagricultural interests

Ratification DebateRatification Debate

Debate centered on 2 questionsDebate centered on 2 questions– Is the government structure strong Is the government structure strong

enough to work?enough to work?– Is it so strong that it will be repressive?Is it so strong that it will be repressive?

Ratification wins largely because ofRatification wins largely because of– Collective action problems of the AofCCollective action problems of the AofC– Lack of a credible alternativeLack of a credible alternative– Arguments of the Federalist PapersArguments of the Federalist Papers

Constitution: A Success!Constitution: A Success!

The success of the Constitution The success of the Constitution hinged on several important factorshinged on several important factors– Attitude of compromise in textAttitude of compromise in text– Willingness to defer tough questions for Willingness to defer tough questions for

later (i.e. slavery)later (i.e. slavery)– George WashingtonGeorge Washington– Hamilton’s Fiscal PoliciesHamilton’s Fiscal Policies

U.S. vs. State ConstitutionsU.S. vs. State Constitutions

LengthLength– US Constitution: 8,700 wordsUS Constitution: 8,700 words– State Constitution: e.g. 40,000 wordsState Constitution: e.g. 40,000 words

Frequency of AmendmentsFrequency of Amendments– US: RareUS: Rare– MO: FrequentMO: Frequent

FocusFocus– US: broad & general principlesUS: broad & general principles– STATE: narrow & specific provisionsSTATE: narrow & specific provisions

US vs. MOUS vs. MO

AuthorityAuthority– US: Supreme Law of LandUS: Supreme Law of Land– STATE: Subordinate to US ConstitutionSTATE: Subordinate to US Constitution– Caveat: Though states cannot restrict Caveat: Though states cannot restrict

rights under Constitution, can expandrights under Constitution, can expand