Revolution & Foundation:Federalist, Anti-Federalist,

Constitution“A more perfect Union”(Political Science 565)

Revolution preserved or betrayed?• Solution to faction (Fed. #51)• Separation of powers– Legislature– Executive– Judiciary

• Checks & balances– By setting factions & branches of gov’t against each other,

none will be able to dominate• Protection of minority groups• “In a society under the forms of which the stronger faction can

readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”

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Revolution preserved or betrayed?• Different electors for each office: direct for House, state

legislature for Senate, electoral college for Presidency– Setting ambitious groups & individuals against one another– “Ambition must be made to counteract ambition. The interest

of the man must be connected with the constitutional rights of the place.

• It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.” (F #51)– Human nature is bad

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Revolution preserved or betrayed?

• AF #51: Satire• Proponents of new gov’t believe themselves a

higher order of person, trying to seize aristocratic power

• “To prevent all inconvenience from [the people] the congress have power to raise and support armies. This is the second thing necessary to render government independent.”– Tyrannical, aristocratic central gov’t – Anti-democratic, excluding the people

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Legislature

• F. #39: Legislature “the sources from which the ordinary powers of government are to be derived:”– The House of Representatives will derive its power from

the American people, and so be national– The Senate will derive its power from the equal states, so

is federal• Federal: The operations of central gov’t affect states• National: The operations of central gov’t affect

individuals• “On trying the Constitution by this criterion, it falls

under the NATIONAL”

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Federalist

• The Executive (Fed. #70):– Limited terms– No legislative power but veto – Under the law– Strong executive makes for strong gov’t– Single executive makes it easier to affix

responsibility• Notice how concerned Hamilton is with

demonstrating that the Executive is not a king

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Anti-Federalist Response

• Anti-Federalist #70• You’re just electing a king!– Kingship should at least be hereditary• Else there will be civil wars, and presidents will stage

coups so that they don’t have to leave power

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Federalist• Judiciary (Fed. #78)– Lifetime appointment to retain independence– Power of judicial review– “A constitution is, in fact, and must be regarded by the

judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

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Anti-Federalist• AF #78• Essentially, the complaint is that the

constitutional position of judges is anti-democratic– there is no power above them that can control their

decisions, or correct their errors. – There is no authority that can remove them from

office for any errors or want of capacity, or lower their salaries

– in many cases their power is superior to that of the legislature.

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Constitution of the United States of America

• 1787– Congress of the Confederation votes to begin plan

to revise/replace Articles of Confederation– Invite states to send delegates to Philadelphia

Convention (only RI refuses)– Contrary to Articles of Confederation, Art. VII says

that only 9 participating states need ratify the new Constitution for it to go into effect

– Adopted September 17, 1787

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Constitution of the United States of America

• What does it mean to “constitute”?• “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.”

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Legislature• Article I

– Broad powers over declaration of war, commerce (foreign & interstate), law, currency, punishment, etc.

• House of Representatives• “Representatives and direct Taxes shall be apportioned among the several

States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to 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.”• Changed by 13th & 14th amendment

• Senate– The Senate of the United States shall be composed of two Senators from each

State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote• changed by 17th amendment to direct election

• Compromise between small and large states

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Legislature• Taxation power

– All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.• Article I, section 7, clause 1

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

States, and with the Indian Tribes.• Article I, section 8, clause 3

• Necessary and Proper Clause– The Congress shall have 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.• Article I, section 8, clause 18

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Executive

• Executive– Commander-in-chief of armed forces– Appoint to offices– Grant pardons– Sees that laws are faithfully executed– Veto• Can be overridden by 2/3 majority of legislature

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Judiciary

• Judiciary• Congress creates lower courts, but there must be

a Supreme Court• Lifetime appointment• Constitutional review– Constitution is “the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (Art. 6)

– Marbury v. Madison (1803)

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Constitution of the United States of America

• No amendment may affect slavery until 1808– Compromise to maintain unity

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Bill of Rights

• Hamilton against, Jefferson in favor• Madison proposes Bill of Rights during

ratification process for Constitution 1789, ratified 1791

• A compromise to keep the Constitution from being derailed

• Affected only the federal government until passage of 14th Amendment in 1868

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Bill of Rights

• The case against: Hamilton in Fed. #84• “in strictness, the people surrender nothing; and

as they retain every thing they have no need of particular reservations.”

• “bills of rights… are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”

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Bill of Rights

• The case for: Anti-Federalist #84 (“Brutus”)• “Ought not a government, vested with such

extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.”• “So clear a point is this, that I cannot help suspecting

that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.”

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Bill of Rights• Individualistic/national– Restrictive of the powers of government– Negative liberty

• 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.– Among the most robust defenses of freedom of

speech & religion in the world

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Second Amendment• Commas & clauses– A well regulated Militia being necessary to the security of

a free State the right of the people to keep and bear Arms shall not be infringed.

– A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

– A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

– A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. [official]

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Bill of Rights• 3 & 4: Security of property from the state

– Protection from the quartering soldiers– Protection from unreasonable search & seizure

• 5: Can’t be indicted for a capital or ‘infamous’ crime w/o indictment from grand jury– “Infamous” interpreted as felony

• 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• 10: 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.– Bill of Rights originally applied only to federal gov’t, but 14th

amendment (1868) made it & all constitutional rights applicable at all levels of gov’t• Due Process clause, Equal Protection clause

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Levels of Scrutiny

• Rational basis review– Is the law a reasonable means to a legitimate end

of government?• Reasonable, not intelligent

– Used in reference to 5th, 14th (equal protection clause) amendments• Ex: Singling out repeat offenders for special

punishment

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Levels of Scrutiny

• Intermediate scrutiny– Must show that law under challenge furthers an

important gov’t interest and materially furthers that interest

– Sex-bases classifications– Sexual orientation?• Unclear, applies in some states

– Content-neutral restrictions on free speech

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Levels of Scrutiny• Strict scrutiny

– When challenged law infringes on fundamental rights (due process, Bill of Rights, etc.) or singles out “suspect classification”

– The law must serve “compelling” gov’t interest, be narrowly tailored to achieve its end, and use least coercive means to accomplish it

– Content-based speech restrictions– Suspect classification

• Group must have history of discrimination against it, membership in it must be immediately apparent, be a politically-vulnerable minority, & its characteristics largely unrelated to gov’t aims

• Race, nationality. Sexual orientation in some states• Only applies to de jure discrimination, not de facto• De jure intent to discriminate: so obvious as to be otherwise inexplicable, with

historical background to suggest intent, and legal and administrative records to demonstrate it

– Wisconsin v. Yoder (1972)

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