Constitutional Foundations

The Framers were versed in the ancient Greek and Roman philosophical texts (Aristotle, Plato, etc.)

The Framers were strongly influenced by 17th and 18th century liberal philosophers on economics and government (Adam Smith, David Hume, John Locke, the Baron de Montesquieu, etc.)

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

form Representative rather than direct democracy Encoded protection of individual liberty

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

Formulating the Constitution was a radical departure from their intended purpose

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

1. Bicameral Legislature and representation – compromise between big states and small states

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

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

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

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

exploitation”

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

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

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

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

Federalist No. 10 continues the discussion of a question broached in Hamilton's Federalist No. 9. Hamilton had addressed the destructive role of faction in breaking apart a republic

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

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

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

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

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

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

Hence faction must be controlled: harnessed to serve the state

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

Hence a large representative republic is necessary to protect against faction

Developed out of the theories of Hobbes & Locke

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

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

Representation is geographic-based under the Constitution

Ultimate authority rests with the people (the people are sovereign per Locke) Preamble: “We the People of the United

States…” 10th Amendment: “The powers not delegated

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

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

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

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

than most governors, who were appointed by the crown

only 3 of 13 governors served more than 1 year term

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

British Parliament

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

things Concept developed from writings of John

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

of the Wealth of Nations Experience with assertive monarchs Frontier distrust of politicians

Not satisfied with the checks in the original Constitution, first Congress amends it: Bill of Rights

10th Amendment: power remains with the people except for those powers specifically delegated by the Constitution

Caveat: A tension between this founding principle and the demands of the 20th century emerges

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

necessary and proper” to fulfill enumerated responsibilities.

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

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

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

Republican form of Government (Federalist #10) A Bill of Rights

to secure certain individual rights against the government

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

governments guards against any one faction taking over

Division of government into three branches (executive, legislature, & judiciary) as well as different

terms and different constituencies for each CAVEAT: Are Powers *really* separate?

Separate Branches, Shared Powers

BRANCHESBRANCHES POWERSPOWERS EXECUTIVE EXECUTIVE CHECKCHECK

LEGISLATIVE LEGISLATIVE CHECKCHECK

JUDICIALJUDICIAL

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

Special case of the separation of powers: division of power between state and national governments

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

Developed from the writings of Montesquieu and David Hume

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

Also a practical necessity following Revolution

VIRGINIA 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

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

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

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

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

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

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

One nation rather than 13 colonies Adopted as a resolution to the collective action

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

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

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

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

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

Shay’s Rebellion – no standing army to respond Constitution gave national government

authority over people and states

Collective Action Problem Applied Under the Articles of Confederation, states

were beset by a structure that prevented them from sharing the transaction costs inherent to a large country.

Transaction costs are the time, effort, and resources required to make collective decisions

Conformity costs are what one party prefers and the collective required

Thesis: . Federalism is enshrined in the Constitution, but political conditions have dictated how the doctrine of federalism has evolved.

Constitution divides power among: federal government state governments the people

The federal government has three types of power: Inherent Delegated (Enumerated, Express) Implied

Enumerated powers are found in Article 1 Section 8 of the United States Constitution, which lists the specific powers of government granted to the United States Congress. Chief Justice John Marshall: “This government is

acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

Enumerated powers include: Regulate interstate commerce Coin money Raise armies

Inherent powers are those powers not specifically stated in the Constitution, but considered necessary for any government to carry out its functions. Cannot logically be held by both nation and state.

Derived, in many cases, from the Royal Prerogative Powers. The Royal Prerogative is a body of customary authority,

privilege, and immunity, recognized in common law jurisdictions possessing a monarchy as belonging to the Crown alone. It is the means by which some of the executive powers of government are possessed by and vested in a monarch with regard to the process of governance of their state are carried out

Examples include the inherent power to Wage war Conduct foreign affairs Right to exist as a nation-state

Implied powers are derived from an enumerated power and the “Necessary and Proper” clause, a.k.a. the “elastic” clause. These powers are not stated specifically but are considered to be reasonably implied through the exercise of delegated powers.

This clause became the center of controversy from the early days of the nation when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist to today:

The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power

The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of Amendment X.

President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall.

Examples of implied powers are vast: EPA Interstate highway system NASA

There are two types of state powers in relation to the federal government: Concurrent Reserved

Concurrent powers are those exercised jointly with the federal government Taxes Environmental protection

Reserved powers are those reserved to the states under the 10th Amendment “the powers not delegated to the U.S. by the

Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people”

Tension with the elastic clause

Constitution left exact nature of balance between states and national government vague by necessity --- states had to be given some power Constitution had to be ratified by states At same time, founders clearly wanted a

more powerful, more flexible national government than what they had experienced under the Article of Confederation

There were two competing theories of how federalism should operate in the early days of the republic: Dual Federalism Cooperative Federalism

Constitution was a compact among the states—not the people Declaration of Independence: ““That these

United Colonies are, and of Right ougt to be Free and Independent States”

states are not subordinate to the national government, but rather exist dually on the same level with it.

Implications States are supreme in some spheres States are free to leave the Union at their own

volition

Constitution is a social contract among the people (see preamble)

As such the national government enjoys the people’s loyalty directly

Implications States are subservient to the federal order States are not free to secede

Historical developments resolved the issue in favor of cooperative federalism

Five crucial historical factors played a role in cooperative federalism becoming the dominant view of federal power Chief Justice John Marshall Civil War Era of the Robber Barons New Deal Civil Rights Era