CHAPTER2 OVERVIEW:The Constitution
INTRODUCTION
Aconstitutionisanation’sbasiclaw. Itcreatespoliticalinstitutions,allocatespower withingovernment,andoftenprovidesguaranteestocitizens. Constitutionsthusestablish whohaspowerinsociety,andhowthatpowerisexercised.Thischapterexaminesthe background of the Constitution, and shows that the main principle guiding the writing of the Constitution wasa concern for limited government and self-determination.
THE ORIGINS OF THE CONSTITUTION
TheBritishkingandParliamentoriginallyleftalmosteverythingexceptforeignpolicyand tradetothediscretionofindividualcolonialgovernments.However,Britainacquireda vast new territory in North America after the French and Indian War (1763). Parliament passedaseriesoftaxestoraiserevenueforcolonialadministrationanddefenseofthenew territory,andimposedthetaxesonthecolonistswithouttheirhavingdirectrepresentation inParliament. Thecolonistsprotested,boycottedthetaxedgoods,andthrew342chests of tea into Boston Harbor as a symbolic act of disobedience. Britain reacted by applying economic pressure througha naval blockade of the harbor, and the colonists responded by forming the First Continental Congress in September, 1774.
In May and June of 1776, the Continental Congress began debating resolutions about independence.Richard Henry Lee moved “that these United States are and of right ought tobefreeandindependentstates.” OnJuly2,Lee’smotionwasformallyapproved. The DeclarationofIndependence—writtenprimarilybyThomasJefferson—wasadopted two days later.The Declaration wasa political polemic, announcing and justifyinga revolution. Today,itisstudiedmoreasastatementofphilosophy.
American political leaders were profoundly influenced by the writings of John Locke, especiallyThe Second Treatise of Civil Government(1689).The foundation of Locke’s philosophy was a belief innatural rights: before governments arise, people exist in astate of nature where they are governed only by the laws of nature.Natural law brings natural rights,includinglife,liberty,andproperty. AccordingtoLocke,thesolepurposeof governmentwastoprotectnaturalrights. Governmentmustbebuiltontheconsentofthe governed,andit shouldbea limitedgovernment. Inparticular,governmentsmustprovidelawsso that peopleknowin advancewhetheror not theiracts will be acceptable; governmentcannottakeanyperson’spropertywithouthisorherconsent.
TherearesomeremarkableparallelsbetweenLocke’sthoughtsandJefferson’slanguagein theDeclarationofIndependence. Thesanctityofpropertywasoneofthefewideasabsent inJefferson’sdraftoftheDeclaration:healteredLocke’sphrase“life,liberty,and property”to read“life, liberty, and the pursuit of happiness.”Nevertheless,Locke’sviews ontheimportanceofpropertyfiguredprominentlyattheConstitutionalConvention.
TheAmericanRevolutionitselfwasessentiallyaconservativemovementthatdidnot drasticallyalterthecolonists’wayoflife. Itsprimarygoalwastorestorerightsthatthe colonists felt were already theirs as British subjects. They did not feel a need for great social,economic,orpoliticalchanges.Asaresult,theRevolutiondidnotcreateclass conflictsthatwouldcausecleavagesinsociety.
THEGOVERNMENTTHATFAILED:1776–1787
In1776,theCongressappointedacommitteetodrawupaplanforapermanentunionof thestates. ThatplanwastheArticlesofConfederation,whichbecamethenewnation’s first governing document.The Articles establisheda government dominated by the states becausethenewnation’sleadersfearedthatastrongcentralgovernmentwouldbecomeas tyrannicalasBritishrule.Ingeneral,theweakandineffectivenationalgovernmentcould takelittleindependentaction. TheContinentalCongresshadfewpowersoutsideof maintaining an army and navy, and had no power to tax or even to raise revenue to carry out that function.The weakness of the national government prevented it from dealing withtheproblemsthatfacedthenewnation.
Significantchangeswereoccurringinthestates—mostsignificantly,adramaticincreasein democracy and liberty, at least for White males.Expanded political participation brought anewmiddleclasstopower.Withexpandedvotingprivileges,farmersandcraftworkers becameadecisivemajority,andtheoldcolonialelitesawitspowershrink.
Apostwardepressionhadleftmanysmallfarmersunabletopaytheirdebtsand threatened with mortgage foreclosures.With some state legislatures now under the control ofpeoplemoresympathetictodebtors,afewstatesadoptedpoliciestohelpdebtors (favoring them over creditors). In western Massachusetts, a small band of farmers led by CaptainDanielShaysundertookaseriesofarmedattacksoncourthousestoprevent judgesfromforeclosingonfarms. Shays’RebellionspurredthebirthoftheConstitution andreaffirmedthebeliefofthePhiladelphiadelegatesthatthenewfederalgovernment neededtobeastrongone.
MAKINGACONSTITUTION:THEPHILADELPHIACONVENTION
The delegates who were sent to Philadelphia were instructed to meet“for the sole and expresspurposeofrevisingtheArticlesofConfederation.”However,amendmentofthe Articles required unanimous consent of the states, so the delegates ignored their instructions and began writinga new constitution.Although the men held very differentviews, they agreed on questions of human nature, the causes of political conflict, and the objectandnatureofarepublicangovernment.JamesMadisonofVirginia(whoisoften called“thefatheroftheConstitution”)wasperhapsthemostinfluentialmemberofthe convention in translating political philosophy into governmental architecture.
Pennsylvania delegate Gouverneur Morris was responsible for the style and wording of theU.S.Constitution. Writtenin1787andratifiedin1788,theConstitutionsetsforth theinstitutionalstructureoftheU.S.governmentandthetaskstheseinstitutionsperform. It replaced the Articles of Confederation.
The55delegatesattheConstitutionalConventionwerethepostcolonialeconomicelite. Theyweremostlywealthyplanters,successfullawyersandmerchants,andmenof independentwealth. Manywerecreditorswhoseloanswerebeingwipedoutbycheap papermoney. Manywerecollegegraduates. Asaresult,itisnotsurprisingthatthey would seek to strengthen the economic powers of the new national government. As property holders, these leaders could not imagine a government that did not make its principal objective the preservation of individual rights to acquire and hold wealth.A few (likeGouverneurMorris)wereevenintentonshuttingoutthepropertylessaltogether.
James Madison claimed thatfactions arise from the unequal distribution of wealth. One factionisthemajority,composedofthemanywhohavelittleornoproperty. Theother istheminority,composedofthefewwhoholdmuchwealth. Thedelegatesthoughtthat, if left unchecked, eithera majority or minority faction would become tyrannical.The founders believed that the secret of good government is“balanced” government.A limited government would have to contain checks on its own power.As long as no faction could seize the whole of government at once, tyranny could be avoided.In Madison’s words,“ambition must be made to counteract ambition.”
THEAGENDAINPHILADELPHIA
AlthoughtheConstitutionissilentontheissueofequality,someofthemostimportant issues on the policy agenda at Philadelphia concerned the issue of equality. Three issues occupiedmoreattentionthanalmostanyothers: whetherornotthestatesweretobeequally represented,whattodoaboutslavery,andwhetherornottoensurepoliticalequality.
The delegates resolved the conflict overrepresentation for the stateswith theConnecticut Compromise,underwhichabicamerallegislaturewouldhaveequalrepresentationforthe statesintheSenateandrepresentationbasedonpopulationintheHouseof Representatives. Although the Connecticut Compromise was intended to maximize equalityamongthestates,itactuallygivesmorepowertostateswithsmallpopulations since it is the Senate that ratifies treaties, confirms presidential nominations, and hears trials of impeachment.
The delegates were bitterly divided over the issue ofslavery. In the end, they agreed that Congress could limit future importing of slaves but did not forbid slavery itself in the Constitution. Infact,theConstitutionstatedthatpersonslegally“heldtoserviceor labour”whoescapedtofreestatesmustbereturnedtotheirowners. Northernand Southern delegates also divided over the issue of how tocountslaves. Under thethree- fifthscompromise,bothrepresentationandtaxationweretobebaseduponthe“number offreepersons”plusthree-fifthsofthenumberof“allotherpersons.”
The delegates dodged the issue ofpolitical equality.A few delegates favored universal manhoodsuffrage,whileotherswantedtoplacepropertyqualificationsontherightto vote. Ultimately,theylefttheissuetothestates.
Economic issues were high on the policy agenda.The writers of the Constitution charged that the economy was in disarray.Virtually all of them thoughta strong national government was needed to bring economic stability to the chaotic union of states that existed under the Articles of Confederation. The delegates made sure that the Constitution clearly spelled out the economic powers of the legislature.Consistent with the general allocation of power in theConstitution,Congresswastobetheprimaryeconomicpolicymaker.
The delegates felt that they were constructing a limited government that could not threaten personal freedoms, and most believed that the various states were already doing an adequatejobofprotectingindividualrights. Asaresult,theConstitutionsayslittleabout personalfreedoms. (Itdoesprohibitsuspensionofthewritofhabeascorpus,prohibits bills of attainder andex post factolaws, prohibits the imposition of religious qualifications for holding office in the national government, narrowly defines treason and outlines strict rules of evidence for conviction of treason, and upholds the right to trial by jury in criminal cases.)The absence of specific protections for individual rights led to widespread criticismduringthedebatesoverratification.
THEMADISONIANMODEL
The founders believed that human nature was self-interested and that inequalities of wealth were the principal source of political conflict. They also believed that protecting privatepropertywasakeypurposeofgovernment. Theirexperiencewithstate governments under the Articles of Confederation reinforced their view that democracy was a threat to property. Thus, the delegates were faced with the dilemma of reconciling economicinequalitywithpoliticalfreedom.
Madisonandhiscolleaguesfearedbothmajorityandminorityfactions. Tothwart tyrannybythemajority,Madisonbelieveditwasessentialtokeepmostofthe government beyond their power. Under Madison’s plan, voters’ electoral influence was limitedandmostlyindirect. OnlytheHouseofRepresentativeswastobedirectly elected.Senators were to be elected by state legislatures (modified by the Seventeenth Amendmentin1913),presidentsweretobeindirectlyelectedbyanelectoralcollege,and judgeswereto be nominatedby the president.
TheMadisonianplanalsoprovidedforasystemofseparationofpowersinwhicheach of the three branches of government would be relatively independent so that no single branchcouldcontroltheothers. However,thepowerswerenotcompletelyseparate:a systemofchecksandbalanceswasestablishedthatreflectedMadison’sgoalofsetting power against powerto constrain government actions.
TheframersoftheConstitutiondidnotfavoradirectdemocracy. Theychosearepublic, a system based on the consent of the governed in which power is exercised by representativesof the public.
RATIFYINGTHECONSTITUTION
Inthebattleoverratification,theFederalistssupportedtheConstitutionandtheAnti- Federalistsopposedit. JohnMarshall(laterchiefjustice)suggested,“Itisscarcelytobe doubtedthatinsomeoftheadoptingstates,amajorityofthepeoplewereinopposition.”
ThepositionoftheFederalistswasstrengthenedbytheFederalistPapers,writtenby James Madison, Alexander Hamilton, and John Jay as an explication and defense of the Constitution. Today,theFederalistPapersremainssecondonlytotheConstitutionitself in symbolizingthe ideasof the framers. The Anti-Federalistsconsideredthe Constitution to bea class-based document intended to ensure thata particular economic elite controlled thenewgovernment,andtheybelievedthattheConstitutionwouldweakenthepowerof the states. They also feared that the new government would erode fundamental liberties. ToallayfearsthattheConstitutionwouldrestrictpersonalfreedoms,theFederalists promised to add amendments to the document specifically protecting individual liberties. James Madison did, indeed, introduce 12 constitutional amendments during the First Congress (1789); ten were ratifiedand have come to be known as theBill of Rights.
TheConstitutionitselfprovidedforratificationbyspecialstateconventionsandrequired that nine states approve the document before it could be implemented. Delaware, the first,approvedtheConstitutiononDecember7,1787. Theninthstate(NewHampshire) approvedonlysixmonthslater.
CONSTITUTIONALCHANGE
The Constitution may be modified either by formal amendment or bya number of informal processes.Formal amendmentschange the language of the Constitution in accordance withtheproceduresoutlinedinArticleV. TheConstitutionmaybeinformallyamended in a variety of ways, such as through judicial interpretation or through custom and political practice. Politicalscientistsoftenrefertotheunwrittenconstitution—anunwritten body of tradition, practice, and procedure that, when altered, may change thespirit of the Constitution.Forexample,politicalpartiesandnationalconventionsarenotmentionedin thewrittendocument,buttheyareimportantpartsoftheunwrittenconstitution.
The Constitution was not intended to be static and unchanging. The founders created a flexiblesystemofgovernment,onethatcouldadapttotheneedsofthetimeswithout sacrificingpersonalfreedom. ThebrevityoftheConstitutionalsocontributestoits flexibility: itisaveryshortdocumentthatdoesnotattempttoprescribethestructureand functionsofthenationalgovernmentingreatdetail.Thisflexibilityhasenabledthe Constitutiontosurviveformorethan200years. AlthoughtheUnitedStatesisyoung comparedtootherWesternnations,ithastheoldestfunctioningConstitution.
Unquestionably,formalamendmentshavemadetheConstitutionmoreegalitarianand democratic. Some amendments have been proposed but not ratified. The best known of these in recent years is theEqual Rights Amendment,or ERA.
The constitutioncontinuesto changedue to judicialinterpretation, changingpolitical practice, technology, and the increasing demands on policymakers.Due to the recent “War on Terror,” power has informally shifted marginally to the executive, as is often the casewhenthecountryfocusesonnationalsecurityconcerns. Thisrepresentsinformal constitutional change, and may be eventually reversed by Congress, as is often the case.
UNDERSTANDING THE CONSTITUTION
The theme of the roleof government runs throughout this chapter. This section examines theConstitutionintermsofthethemeofdemocracy,andlooksattheimpactofthe Constitution on policymaking. The Constitution created arepublic, or arepresentative formofdemocracymodeledaftertheLockeantraditionoflimitedgovernment.
One of the central themes of American history is thegradual democratization of the Constitution. While eighteenth-century upper-class society feared and despised democratic government, today few people would share the founders’ fear of democracy.
Thesystemsofseparationofpowersandchecksandbalancesestablishedbythe Constitutionallowalmostall groupssomeplacein the politicalsystemwheretheir demands for public policy can be heard.Because many institutions share power, a group canusuallyfindatleastonesympatheticear. Thesesystemsalsopromotethepoliticsof bargaining,compromise,andplayingoneinstitutionagainstanother—tosuchanextent thatsomescholarsevensuggestthereissomuch“checking”thateffectivegovernmentis almost impossible.
CHAPTER OUTLINE
I.THE ORIGINS OF THE CONSTITUTION
A.Aconstitutionisanation’sbasiclawthat:
1.Createspoliticalinstitutions.
2.Assigns or divides powers in government.
3.Oftenprovidescertainguaranteestocitizens.
4.Includes an unwritten accumulation of traditions and precedents.
5.Sets the broad rules of the game of politics.
B.Theroadtorevolution.
1.TheKingandParliamentoriginallyleftalmosteverythingexceptforeign policyandtradetothediscretionofindividualcolonialgovernments.
2.Britain obtained a vast expanse of new territory in North America after the
FrenchandIndianWarendedin1763.
3.The BritishParliamentpasseda seriesof taxesto pay forthe costof defending the territory, and also began to tighten enforcement of its trade regulations.
4.Americans resented the taxes, especially since they had no direct representation in Parliament.
5.ThecolonistsrespondedbyformingtheFirstContinentalCongress (September, 1774) and sent delegates from each colony to Philadelphia to discussthefutureofrelationswithBritain.
C.Declaringindependence.
1.The Continental Congress met in almost continuous session during 1775 and 1776.
2.In May and June of 1776, the Continental Congress began debating resolutionsaboutindependence;aftertwodaysofdebateonthewording,the DeclarationofIndependence(writtenprimarilybyThomasJefferson) wasadoptedonJuly4.
D.TheEnglishheritage:thepowerofideas.
1.John Locke’s writings, especiallyThe Second Treatise of Civil Government, profoundlyinfluencedAmericanpoliticalleaders.
2.Locke’sphilosophywasbasedonabeliefinnaturalrights,thebeliefthat people exist ina state of nature before governments arise, where they are governed only by thelaws of nature.
a.Naturallawbringsnaturalrights,whichincludelife,liberty,and property.
b.Because natural law is superior to human law, natural law can justify evenachallengetotheruleofatyrannicalking.
c.Locke argued that government must be built on theconsent of the governed—the people must agree on who their rulers will be.
d.Governmentshouldalsobealimitedgovernment,withclear restrictionsonwhatrulerscando.
e.According to Locke, thesolepurposeofgovernmentwastoprotect natural rights.
f.Inanextremecase,peoplehavearighttorevoltagainstagovernment thatnolongerhastheirconsent,butLockestressedthatpeopleshould notrevoltuntilinjusticesbecomedeeplyfelt.
E.Jefferson’shandiwork:theAmericancreed.
1.ThereareanumberofcloseparallelsbetweenLocke’sthoughtsand Jefferson’slanguageintheDeclarationofIndependence.
2.ThesanctityofpropertywasoneofthefewideasabsentinJefferson’sdraft oftheDeclarationofIndependence(buttheLockeanconceptofproperty figuredprominentlyattheConstitutionalConvention).
3.JeffersonalteredLocke’sphrase,“life,liberty,andproperty”to “life,liberty, and the pursuit of happiness.”
F.Winningindependence
1.Declaringindependencemerelyannounceditsbeginning.
2.The colonists were outnumbered but won their war of independence.
G.The “conservative” revolution.
1.The revolutionwas essentiallya conservativemovement that did not drasticallyalterthecolonists’wayoflife.
2.Theprimarygoaloftherevolutionwastorestorerightsthecolonistsfeltwere already theirsas British subjects.
II.THEGOVERNMENTTHATFAILED:1776–1787
A.TheArticlesofConfederationestablishedagovernmentdominatedbythe states.
1.TheArticlesestablishedanationallegislature(theContinentalCongress) withonehouse.
a.States could send up to seven delegates, but each state had only one vote.
b.The Continental Congress had few powers outside of maintaining an armyandnavy(andlittlemoneytodoeventhat);ithadnopowertotax andcouldnotregulatecommerce(whichinhibitedforeigntradeandthe development ofa strong national economy).
2.Therewasnopresidentandnonationalcourt.
3.The weakness of the national government prevented it from dealing with the problemsthatfacedthenewnation.
B.Changes in the states.
1.Importantchangeswereoccurringinthestates,includingadramaticincrease indemocracyandliberty(forWhitemales).
2.Expanded political participation brought a new middle class to power, which includedartisansandfarmerswhoownedsmallhomesteads.
3.Withexpandedvotingprivileges,farmersandcraftworkersbecameadecisive majority; members of the old colonial elite saw their power shrink, and they didn’t like it.
C.Economicturmoil.
1.Apostwardepressionhadleftmanysmallfarmersunabletopaytheirdebts; manywerethreatenedwithmortgageforeclosures.
2.Statelegislatureswerenowunderthecontrolofpeoplemoresympatheticto
debtors.
3.Afewstates(notablyRhodeIsland)adoptedpoliciestohelpdebtors, favoringthemovercreditors—someprintedpapermoneyandpassed “forceacts,” requiringcreditorstoacceptthealmostworthlessmoney.
D.Shays’Rebellion.
1.In1786,asmallgroupoffarmersinwesternMassachusettsledbyCaptain DanielShaysrebelledatlosingtheirlandtocreditors.
2.Shays’Rebellionwasaseriesofarmedattacksoncourthousestoprevent judgesfromforeclosingonfarms.
3.Shays’RebellionspurredthebirthoftheConstitution.
E.The aborted Annapolis meeting.
1.InSeptember,1786,asmallgroupofcontinentalleadersassembledat Annapolis,Maryland,to consider the problem of commercial conflicts that had arisen among the states.
2.Onlyfivestatessentdelegates,andtheyissuedacallforafull-scalemeeting ofthestatesinPhiladelphiathefollowingMay.
III.MAKINGACONSTITUTION:THEPHILADELPHIACONVENTION
A.Delegates were given specific instructions to meet“for the sole and express purposeofrevisingtheArticlesofConfederation.”
1.AmendmentwasnotfeasiblesinceamendingtheArticlesrequiredthe unanimousconsentofthestates.
2.Twelvestatessentrepresentatives;RhodeIslandrefusedtoparticipate.
3.The55delegatesignoredtheirinstructionsandbeganwritinganewconstitution.
B.GentlemeninPhiladelphia.
1.Aselectgroupofeconomicandpoliticalnotables.
2.Menofwealth;manywerecollegegraduates.
3.Most were coastal residents;a significant number were urbanites.
C.Philosophyintoaction.
1.Althoughverydifferentphilosophicalviewswererepresented,thegroup agreedonquestionsofhumannature,thecausesofpoliticalconflict,andthe objectandnatureofarepublicangovernment.
2.The delegates were united in their belief that people were self-interested and that government should playa key role inchecking and containing the natural self-interestof the people.
3.JamesMadison,whoisoftencalled“thefatheroftheConstitution,”was perhaps the most influential member of the Convention in translating political philosophy into governmental architecture.
a.Madison believed thatthe distribution of wealth(property)is the source ofpoliticalconflict.
b.He claimed thatfactionsarise from the unequal distribution of wealth: onefactionisthemajority(composedofthemanywhohavelittleorno property);theotherfactionistheminority(composedofthefewwho hold wealth).
4.Thedelegatesbelievedthateitheramajorityoraminorityfactionwillbe tyrannicalifitgoesuncheckedandhastoomuchpower.
a.Propertymustbeprotectedagainstthetyrannicaltendenciesoffaction.
b.Thesecretofgoodgovernmentis“balancedgovernment”:aslongasno faction could seize complete control of government, tyranny could be avoided.
IV.THEAGENDAINPHILADELPHIA
A.Although theConstitution is silent on equality, some of the most important issues on the policy agenda at Philadelphia concerned equality: representation of the states,whattodoaboutslavery,andwhetherornottoensurepoliticalequality.
B.Representationofthestates.
1.TheNewJerseyPlan,proposedbyWilliamPatersonofNewJersey,called for each state to be equally represented in the new Congress.
2.TheVirginiaPlan,suggestedbyEdmundRandolphofVirginia,calledfor representationinCongressbasedonthestate’sshareoftheAmericanpopulation.
3.TheConnecticut Compromise,devised by Roger Sherman and William JohnsonofConnecticut,wasthesolutionadoptedbythedelegatesthat
createdabicamerallegislatureinwhichtheSenatewouldhavetwo members from each state and the House of Representatives would have representationbasedonpopulation.
C.Slavery.
1.ThedelegatesagreedthatCongresscouldlimitfutureimportingofslaves
(theyprohibiteditafter1808),buttheydidnotforbidslaveryitself.
2.TheConstitutionstatedthatpersonslegally“heldtoserviceorlabour”who escapedtofreestateshadtobereturnedtotheirowners.
3.Underthefamousthree-fifthscompromise,bothrepresentationand taxationweretobebaseduponthe“numberoffreepersons”plusthree- fifthsofthenumberof“allotherpersons.”
D.Equality in voting.
1.Somedelegatesfavoredsuffrageforallfree,adultmales;somewantedtoput propertyqualificationsontherighttovote.
2.Ultimately,theydecidedtoleavetheissuetothestates.
E.Economicissues.
1.EconomicissuesplayedanimportantroleattheConvention.
a.AdvocatesoftheConstitution(Federalists)stressedtheeconomy’s weaknesses.
b.OpponentsoftheConstitution(Anti-Federalists,whoopposedastrong nationalgovernment)claimedthatchargesofeconomicweaknesswere exaggerated.
2.ItisnotsurprisingthattheframersoftheConstitutionwouldseekto strengthen the economic powers of the new national government since delegatestotheConstitutionalConventionwerethenation’spostcolonial economicelite.HistorianCharlesBeardarguedthatthedelegatesprimarily wantedthesestrongeconomicpowerssothattheirownwealthwouldbe protected;thebestevidencedoesnotsupportBeard’sthesis.
3.TheConstitutionclearlyspelledouttheeconomicpowersofCongress.
a.Congresswastobethechiefeconomicpolicymaker.
b.Congresswasgrantedpowertotaxandborrow,andtoappropriatefunds.
c.Congresswasalsograntedpowerstoprotectpropertyrights—powersto punishcounterfeitersandpirates,ensurepatentsandcopyrights,to legislaterulesforbankruptcy,andtoregulateinterstateandforeign commerce.
4.Theframersalsoprohibitedpracticesinthestatesthattheyviewedas inhibitingeconomicdevelopment.
a.Statemonetarysystems.
b.Placingdutiesonimportsfromotherstates.
c.Interfering with lawfully contracted debts.
5.States were required to respect civil judgments and contracts made in other states,andtoreturnrunawayslavestotheirowners(overturnedbythe ThirteenthAmendment).
6.The national government guaranteed the states“a republican form of government”to prevent a recurrence of Shays’ Rebellion, and the new
government was obligated to repay all the public debts incurred under the ContinentalCongressandtheArticlesofConfederation($54million).
F.Individualrights.
1.The delegates felt that preserving individual rights would be relatively easy.
a.They were constructinga limited government that, by design, could not threaten personal freedoms.
b.Powers were dispersed so that each branch or level of government could restraintheothers.
c.Mostdelegatesbelievedthatthevariousstateswerealreadyprotecting individualrights.
2.AlthoughtheConstitutionsayslittleaboutpersonalfreedoms,itdoes includethefollowing:
a.Thewrit ofhabeas corpusmay not be suspended except during invasion orrebellion.
b.Congress and the states are prohibited from passing bills ofattainder (which punish people withouta judicial trial) andex post factolaws (whichpunishpeopleorincreasethepenaltiesforactsthatwerenot illegal or were not as severely punished when the act was committed).
c.Religiousqualificationsmaynotbeimposedforholdingofficeinthe nationalgovernment.
d.Treason is narrowly defined, and strict rules of evidence for conviction of treason are specified.
e.Therighttotrialbyjuryincriminalcasesisguaranteed.
3.The absence of specific protections for individual rights led to widespread criticismduringthedebatesoverratification.
V.THEMADISONIANMODEL
A.Thwartingtyrannyofthemajority.
1.James Madison and his colleagues feared both majority and minority factions.
2.Topreventtyrannybythemajority,Madisonbelievedthatitwasessential tokeepmostofthegovernmentbeyondthecontrolofthemasses.
a.UnderMadison’splanthatwasincorporatedintheConstitution,voters’ electoralinfluencewaslimitedandmostlyindirect.
b.OnlytheHouseofRepresentativeswasdirectlyelected;senatorsand presidents were indirectly elected, and judges were nominated by the president(modifiedby the SeventeenthAmendment,which providesfor directpopularelectionofsenators).
B.Separation of powers and checks and balances.
1.TheMadisonianschemeprovidedforasystemofseparationofpowers in whicheachofthethreebranchesofgovernmentwouldberelatively independentoftheotherssothatnosinglebranchcouldcontroltheothers.
2.Powerwasnotseparatedabsolutely,butwassharedamongthethree institutions.
3.Since power was not completely separate, each branch required the consent oftheothersformanyofitsactions—therebycreatingasystemofchecksand balances that reflected Madison’s goal of settingpower against power
to constrain government actions.
a.ThepresidentchecksCongressbyholdingthevetopower.
b.Congress holds the “purse strings” of government, and the Senate has thepowertoapprovepresidentialappointments.
c.Judicial review(the power of courts to hold executive and congressional policiesunconstitutional)wasnotexplicitintheConstitution,butwas assertedbytheSupremeCourtunderJohnMarshallinMarbury v. Madison(1803).
d.Sincetheframersthoughtmuchgovernmentactivitywouldtakeplacein the states, federalism was considered an additional check on the power ofthenationalgovernment.
C.Theconstitutionalrepublic.
1.TheframersoftheConstitutionestablishedarepublic(asystembasedon the consent of the governed in which power is exercised by representatives ofthepublic).
2.Thisdeliberativedemocracyestablishedanelaboratedecision-makingprocess.
3.Thesystemofchecksandbalancesandseparationofpowershasa conservative bias because it favors thestatus quo; that is, people desiring change must usually haveasizable majorityrather thana simple majority.
4.The Madisonian system encourages moderation and compromise, and retards change.
VI.RATIFYINGTHECONSTITUTION
A.FederalistsandAnti-Federalists.
1.AfiercebattleeruptedbetweentheFederalists(whosupportedthe Constitution)andtheAnti-Federalists(whoopposedit).
2.Federalists:
a.James Madison, Alexander Hamilton, and John Jay—writing under the namePublius—wrotea series of 85 articles (known as theFederalist Papers) in defense of the Constitution.