BACKGROUND

• After the American Revolution

• U.S. was governed by the Confederate Congress using the Articles of Confederation

• Confederate Congress was weak

• No executive power

• No power to tax etc.

• Most power fell to the individual states - all with their own constitutions.

• Shays's Rebellion

• Farmers in western Massachusetts rose up against the state government in Boston.

• Convinced George Washington, Alexander Hamilton and others that uprisings were inevitable because the government was weak.

• In 1787, a meeting was held to decide what to do about the Confederacy.

CONSTITUTIONAL CONVENTION, 1787

• 55 delegates met in secret in Philadelphia for five months.

• Attendees:

• Conservative, educated, well-to-do, white men (lawyers, merchants, land speculators etc.)

• All agreed that Articles of Confederation couldn't be revised.

• Changing the Articles required all thirteen states to agree.

• Rhode Island was opposed.

• Nine states needed to ratify the Constitution (Article VII)

LEGISLATURE

Virginia Plan

• Proposed a two house (bicameral) legislature

• With state's population determining representation in each

• Favored big states

• Proposed by James Madison

New Jersey Plan

• Proposed a single house (unicameral) legislature

• With each state casting one vote

• Favored small states

• Proposed by William Paterson

Connecticut Compromise ("Great Compromise")

• Compromise between New Jersey and Virginia Plan

• Proposed by Roger Sherman

• Defined in Article 1 of the Constitution

• Proposed that congress (the legislature) would have two houses

• Senate:

• Upper House

• Two representatives from each state.

• Chosen indirectly by state legislatures (until the 17th Amendment)

• Representatives serve for six years elected in staggering years.

• Head of the Senate: Vice President

• Today: 100 members

• House of Representatives:

• Lower House

• Representation based on population

• Elected every two years by the people.

• Head of House: Speaker of the House

• Voted by people (qualifications determined by states)

• Today: 435 members

PREAMBLE

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

• Preamble is from the "people"

• Compared to Articles of Confederation which focused on the states.

• "People" doesn't include Indians, slaves

• "More perfect union" -- compared to Articles of Confederation

• "Domestic Tranquility" -- This refers to fear of chaos after Shays's Rebellion

• "Common Defense" -- Under Articles of Confederation, states had their own militias - there was no national force.

ARTICLES

• System of checks and balances set up.

• To prevent any branch from dominating the other two.

• Inspired by Montesquieu

• Federalism

• Balancing power between national government and states.

Article 1: Legislature

Article 2: Executive Power (President)

Article 3: Judicial Power (Courts)

Article 4: Relationship between the states

Article 5: How to amend the Constitution

Article 6: Supremacy of U.S. laws over state laws

Article 7: Ratification

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EXECUTIVE POWER (PRESIDENCY)

• Democracy was limited

• President has to be 35 years old, 14 years resident and a "natural born citizen"

• The wording is vague: Born in the U.S.? Or born outside U.S. to American parents?

• Recent presidential candidates not born in U.S.:

• John McCain -- born in Panama (both parents were U.S. citizens)

• Ted Cruz -- born in Canada (mother was U.S. citizen, father was Cuban)

• Martin Van Buren (8th U.S. president) was the first president born in the "United States" (all the others were born in"colonies")

• President would be elected by the Electoral College, rather than by direct vote.

• Number of electors for each state would be based on the total number of senators and representatives in Congress.

• States decided who qualified to vote.

• Today: 538 electors

• 100 Senators (2 from each state)

• 435 Representatives

• + 3 electoral votes for Washington DC (since 23rd Amendment 1961)

• DC doesn't have senators or representatives in the House of Reps.

• Until 12th Amendment (1803), candidate with highest votes became president, 2nd highest became VP.

• If no candidate won a majority of electoral votes

• The election go to the House of Representatives

• Where each state would get one vote.

• Happened in 1800 and 1824 (See "corrupt bargain")

• President had power to appoint federal judges (who would serve for life)

FEDERALISTS V. ANTIFEDERALISTS

Background

• Delegates at the Constitutional Convention are proposing drastically changing the balance of power between the federal government and the states.

• Delegates bypass state legislatures when it's time to ratify the new constitution and go straight to the people.

• Two groups emerge when it comes time to ratify the new constitution.

Federalists

• Want a strong national government

• Favored the Constitution

• Mostly from urban areas (cities), wealthier, educated, well organized, controlled press

• Supported big business

• Want government to help regulate the economy (for example, with a federal bank)

• People: Alexander Hamilton, James Madison, John Adams, John Jay, (George Washington)

• Wrote Federalist papers to argue their support for Constitution

• Hamilton (wrote 50), Madison (30) John Jay (5)

• "Government is friend of freedom"

• Madison (Federalist No. 10 and No. 51)

• Argument against Constitution was that US too large for a republic

• Madison said large state will help guarantee against factions, source of stability.

• In a small community, faction could have more power than in large republic.

• Good of society can rise from clash of private interests (free economy)

Anti-Federalists

• Opposed to strong central government (wanted more state power)

• Opposed to the Constitution

• Believed Constitution didn't protect individual and states' rights

• Mostly from rural areas (farmlands), poor, small farmers, debtors

• Felt states would know best how to manage their money

• Saw constitution as a plot by upper classes to steal power back from common folks.

• People: Samuel Adams, Patrick Henry, Richard Henry Lee

THE CONSTITUTION AND SLAVERY

• Word "slavery" is not used in the Constitution

• Article I, Section 2: (Three-fifths clause)

• "Representatives and taxes will be apportioned along the states according to respective numbers adding the "whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"

• Article I, Section 9: (importation of slaves will not be banned before 1808)

• "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight (1808)"

• Article IV, Section 2: (Fugitive slaves must be returned to owners)

• "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

THE "ELASTIC CLAUSE" ("NECESSARY AND PROPER" CLAUSE)

• Article I, Section 8 (Gives Congress the right to do whatever is necessary in order to fulfill its listed duties).

• Among the duties listed in Section 8

• To borrow Money on the credit of the United States

• To regulate Commerce with foreign Nations, and among the several States

• To coin Money and regulate its value

• Elastic Clause: Congress has the power:

• "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

• Loose Constructionism:

• Belief that the Elastic Clause gives Congress the power to go beyond it's listed duties -- for example, by establishing a national bank -- if it helps Congress fulfill its other jobs.

• Early proponents: Alexander Hamilton, John Adams, Federalists

• Strict Constructionism:

• Belief that the Congress does NOT have powers beyond the ones listed in the Constitution

• Early proponents: Thomas Jefferson, Democratic-Republicans

STATES (Article IV)

• "Federalism" = relationship between the national government and the states.

• Fugitive slaves and criminals must be returned to state from which they fled.

• Congress has power to make rules in Territories.

• Government will guarantee republican govt. in each state

• And protect states from invasion and domestic violence.

• Comity Clause aka Privileges and Immunities Clause

• prevent states from treating citizens of other states in a discrimintory manner.

AMENDING THE CONSTITUTION (Article V)

• Proposal of Amendments

• By 2/3 of both houses (Senate and House of Reps)

• Or Legislatures of 2/3 of the states (never happened)

• Ratification of Amendments

• By legislatures or conventions in 3/4 of the states.

• Articles of Confederation (by contrast) required all 13 colones to approve any changes.

• First Ten Amendments ("Bill of Rights")

• Ratified 1787-88 to address concerns of anti-federalists.

• Today there are 27 Amendments

SUPREMACY CLAUSE (Article VI)

• "This Constitution, and the Laws of the United States .... shall be the supreme Law of the Land"

RATIFICATION (Article VII)

• Nine states required to ratify constitution.

• Reasoning: four remaining states could not survive without the other nine.

• Five states (Del, PA, NJ, Georgia, Conn.) ratified Constitution in Jan. 1788

• Two states (Rhode Island and N. Carolina) voted against ratification.

• Virginia., NY and Mass., ratified only with added Bill of Rights.

• Nine states ratified Constitution by June 1788

BILL OF RIGHTS

• Written by federalist James Madison (the "father of the Constitution")

• To please anti-federalists.

• Anti-federalists wanted to ensure rights for people and the states.

• Madison thought Bill of Right unnecessary

• Based on English Bill of Rights 1689

• Signed by William and Mary after "Glorious Revolution"

• Freedom to petition the king

• Freedom for Protestants to have arms for defense

• Freedom of speech in Parliament

• Freedom from cruel and unusual punishments and excessive bail

• Freedom from fines and forfeitures without trial

1st Amendment: No law can be made prohibiting free exercise of religion, speech, press, assembly and right to petition govt.

2nd Amendment: Right of people to bear arms.

3rd Amendment: No quartering in homes without consent.

4th Amendment: No unreasonable searches and seizures, warrants needed.

5th Amendment: No double jeopardy (tried twice for same crime), no forcing someone to be witness against oneself ("I plead the fifth"), due process of law, no private property taken without compensation

6th Amendment: Speedy and public trial in criminal case by impartial jury, confronted with accuse, right to Counsel for defense (see Miranda Rights)

7th Amendment: Right of trial by jury in civil case over $20

8th Amendment: No excessive bail or cruel and unusual punishments.

9th Amendment: People enjoy rights that are not listed in Constitution.

10th Amendment: Powers not given to federal govt. are reserved for states or people.