AP US: The Constitution (1788 - )
Table of Contents
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The Constitutional Convention (1787)
Delegates
- there is a recognised need for a revision of the Articles
- May 1787 - 55 delegates from 12 states meet and begin to work on revising the government of the US
- Washington, Franklin, James Madison, George Mason, Roger Sherman, and others gather
- not there: Patrick Henry, Sam Adams, Thomas Paine
- they thought that this meeting wasn't actually called to revise the Articles, but to completely replace them
- John Adams, Jefferson are serving overseas, so they're not present either
- men of wealth and property
- want to protect the nation, and their own property
- Rhode Island had been taken over by debtors, so there is concern
- they are told to "revise" the Articles; however, most came with an intent of getting rid of the Articles and replacing them with something that will take the nation forward and last for a long time
- they decide to hold the meetings in secret
- recognise that government isn't working as is
- no intentions of "revising"-actually intend to replace
- so, they need something that can
- prevent tyranny of majority or minority
- sufficient powers for short and long term economic development
- conduct a more effective foreign policy
Motivations
- do what was necessary and appropriate given current problems, in order to fix the nation
- create a government that gave no single person to much power and create a system of checks and balances within the government
- historian, Charles Beard:
- says that the Founding Fathers were selfish, and wanted a government that would stimulate the economy, protect their property against mob rule, and allow them to collect loans
- says that the Articles of Confederation would have developed into an effective government
- however, there is no historical evidence for an effective confederal government
- his thesis, therefore, has been disputed
- others state that regional concerns were a motivation
- stimulate local economies
- for example, New Orleans was held by Spain, who hindered trade along the Miss. R. - the South had actually threatened secession over this issue
- different economic interests dominate in different areas: mainly agriculture vs. industry
How to Govern?
- the Virginia Plan has been prepared by James Madison
- favoured by large states
- bicameral legislature
- lower house selected by people
- upper house selected by lower house
- judiciary system
- executive president, serves 1 term, chosen by both houses
- central government has much more power than in Articles, because it has a national executive and judiciary
- New Jersey Plan
- favoured by smaller states
- unicameral legislature, each state gets one vote
- executive without power
- judiciary that can arbitrate cases that originate in state courts
- conflict arises, split between bankers, industrial North, large states, Virginia Plan vs. debtors, rural South, small states. New Jersey Plan
- also, there is some conflict over Western land
Great Compromise
- bicameral legislature (Congress)
- House of Representatives
- based on population
- elected by the people
- 2 year term, can run for reelection
- Senate
- based on equality
- 2 per state
- the "equal Senate" is the only part of the Constitution that cannot be amended
- 6 year term
- chosen by the state legislatures (until 1913, 17th Amendment)
- House of Representatives
- Executive, the President, is chosen by the electoral college
- Judges are chosen by the President and approved by the Senate
- during the early years, the Founding Fathers didn't trust the people, so the people only directly choose the House; they only indirectly choose the Electoral College
- every two years, 1/3 of the Senate is up for reelection
- House - have to be 25 yrs. and live in the state
- Senate - have to be 30 yrs. and live in the state
- the Constitution will be a series of compromises - these compromises are necessary to have a Constitution
- compromises in trade
- South agreed to let the federal government control domestic and foreign trade in return for clause that allows importation of slaves for another 20 years
- government can tax imports, but not exports
- all bills dealing with money must arise in the House; here, the representatives are directly elected by the people, and their shorter terms make them more accountable to the people
- direct taxes on the states are assessed by population
- 3/5 Compromise
- 3/5 of a state's slave population would be counted for taxes and representation
- slaves are property except when we want more representation; also, they're not property to avoid property taxes
- shows how South tended to dominate discussion - but, monied Northern industry needed a new government to improve economy and manufacturing
The Constitution
Separation of Power
- separate branches have separate functions
- equal in stature
- three separate branches are defined for the government
- Article I: Legislative - makes the law
- Article II: Executive - enforces the law
- Article III: Judicial - interprets the law
Checks and Balances
- a separate concept from Separation of Powers
- ensures that one branch does not become too powerful
- branches are separate (Separation of Powers) but equal (Checks and Balances)
- Founding Fathers feared too much power in one group - they didn't want another king or another powerful Parliament
- 17 clauses in Article I list the powers of Congress
- but, the legislation must be signed into law by the President
- Congress can override veto with 2/3 vote of each house
- Supreme Court can declare the law unconstitutional
- Also, both the House and the Senate must pass bills
- President appoints judges, but Senate must approve with simple majority and Congress can impeach
- House and Senate must pass bill in same form, then the President has four options:
- sign it: becomes a law
- not sign: it bill remains unsigned for ten days while Congress is in session, it becomes law without a signature
- not sign: unsigned for ten days when Congress is not in session means the bill is vetoed, a "pocket veto"
- veto: both House and Senate must re-pass, with a 2/3 majority, to override veto
- for all appropriations of money, the bill must originate in the House
- all treaties must be approved by 2/3 of the Senate (the last significant one that wasn't approved was Versailles, with Woodrow Wilson and the League of Nations)
- appointments to Cabinet, Judiciary, Ambassadors, etc. must be approved by simple majority of Senate
- Judges are appointed for life, after approval by Senate
- they can only be impeached, resign, or die; they have a lifetime appointment
- they're not beholden to anyone because of their life term; they are independent of whoever appointed them
Article IV: Relations of States With One Another
- recognise the independence, but sameness, of states
- documents, such as marriage licenses, etc., are valid in all states
- extradition of criminals between states - tried for crimes in state of origin
- "full faith and credit"
- citizen in all states if citizen in one
Article V: Process of Amendment
- (hopefully) amendments will improve the Constitution
- the only part that cannot be changed is the equality of the Senate
- the 3/4 state process of amendment was used to ratify the Constitution, which was technically illegal, because the Articles of Confederation required 100% agreement for amendment
- Process
- Propose
- 2/3 vote in each house
- national convention called by 2/3 of the states with express purpose of amendment
- this idea was more valid when you only had 13 states; also, it provided a semblance of legality for the changing of the Articles
- Ratify
- 3/4 of the state legislatures approve
- once a legislature has voted "yes", that vote cannot be changed, even if the people object and elect a new legislature to change it to "no"
- a new legislature can change a "no" to a "yes", however, and that change will be final
- 3/4 state conventions approve
- has to be one or the other for all states - i.e. either all states use the legislature method or all states use the convention method
- 3/4 of the state legislatures approve
- Propose
- Constitution is proposed by a national convention, ratified by state conventions
- only time conventions are used for both proposing and ratifying
- for 26 out of the 27 Amendments to date, 2/3 of Congress proposed, 3/4 of state legislatures approved
- for Amendment 21 (anti-Prohibition), state conventions were used to approve
- 27th Amendment
- in theory, limits Congressional pay
- originally proposed as a part of the Bill of Rights - took 203 years to be passed
- now, Amendments have a 7-year life span; if they're not passed after 7 years, the process has to start over
Article VI: General Provisions
- Supremacy Clause
- establishes the Constitution as the "supreme law of the land"
- creates hierarchy of laws:
- Laws passed by Congress
- State constitutions
- State laws
- local ordinances
- all of these are subject to judicial review, as per Article III
Article VII: Ratification
- National Convention called for by 2/3 of the states proposed the Constitution
- when 3/4 (9 out of 13) agree, the Constitution will be made the supreme law of the land
- but, they knew that Virginia, New York, Pennsylvania, and Massachusetts would need to approve it for it to be accepted
- Virginia and New York were of especial concern
- Rhode Island and North Carolina did not ratify until after everyone else had already done so - they wanted a Bill of Rights to be included
- however, they couldn't survive outside of the union of the Constitution
- "Rogue Island" was going to become a foreign state
Factions of Ratification
- Federalists
- support Constitution
- say a more powerful central government is needed to let the nation grow and deal with problems
- supporters include James Madison (Father of the Constitution), John Jay (first Chief Justice of Supreme Court), George Washington (the nation's hero and "moral compass"), Ben Franklin
- Alexander Hamilton will be the leader of this faction, and the political party that later arises from it; he is the governor of New York, a position with much power, so he pushed for a strong chief executive
- say that the Constitution is necessary for pure survival
- supported by people with money
- believe it's the best way to strengthen the union in ways that the Articles of Confederation can't
- Anti-Federalists
- backcountry, agricultural background, debtors
- philosophically opposed to a strong central government
- led by Patrick Henry - didn't even attend the Constitutional Convention
- also supported by John Hancock, George Mason (angered because it didn't include a Bill of Rights, which all state constitutions had)
- The Federalist Papers
- written by Hamilton, Madison, Jay
- point out why the Articles of Confederation government is in adequate and why the Constitution is so much better
- try to convince crucial people such as New York
- try to legitimise elaborate system of separate powers, checks and balances, checks on checks - closed but flexible
- Federalist #10 - a Republican form of government is the only one that will be able to deal with the nation's growth
- Federalist #51 - "ambition must be made to counteract ambition" - Madison
Ratification
- gain more support by agreeing to add a Bill of Rights
- Federalists thought a Bill of Rights was unnecessary - you select your representatives, and they'll support your rights
- habeas corpus (right to be charged when imprisoned) was already included in the Constitution
- promise to add Bill of Rights after the Constitution is ratified
- James Madison also prepares a Bill of Rights
- there were originally 12
- 10 were approved
- they list protections for the people, not the government
- Federalists win 9 out of the 13 state needed to ratify
- by July 1788, North Carolina would sign on (the Bill of Rights had been added)
- Rhode Island finally joined as well
Advantages
- Changes - only 27 in over 200 years; the Constitution was made hard enough to change that changes can't be made on the spur of the moment
- Congress - 17 specific clauses, but the "implied powers" clause allows Congress to deal with problems unforeseen by the Founding Fathers
- not written in a political or intellectual vacuum
- believe God created the universe, but left man to find the laws that govern nature
- humans are created in God's image, so that which humans create should aspire to perfection
- Calvin and Hobbes - can't trust man, because he is basically evil
- these Enlightenment thinkers influenced the creation of the Constitution