Unit 2Creation of the Constitution

Why did the Framers create the Constitution?

Articles of Confederation ◦ (1781-1789) The first constitution of the United States,

created to form a perpetual union and a firm league of friendship among the thirteen original states. It was adopted by the Second Continental Congress on November 15, 1777, and sent to the states for ratification.  

Confederation ◦ A form of political organization in which the sovereign

states combine for certain specified purposes, such as mutual defense. Member states can leave a confederation at any time. The United States was a confederation from 1776 to 1789.  

Shays' Rebellion ◦ An armed revolt by Massachusetts farmers seeking relief

from debt and mortgage foreclosures. The rebellion fueled support for amending the Articles of Confederation.  

Americans realized that they would need some centralized leadership to address the following issues◦ Manage relationships between states◦ Resolve border disputes◦ Conduct relations with rest of world

Along with Declaration of Independence, Second Continental Congress creates the first US government, the Articles of Confederation (1776)

Fear of a Strong Central Govt.◦ To many, their state was their

country.◦ British government’s “abuse” of

power could characterize a strong US government

◦ Study of history suggested that republican government can only succeed in small communities

◦ Articles considered a “firm league of friendship” Most powers of government were given

to states Ex) Congress could not collect taxes,

could not regulate trade

Fear that some states would dominate central government

The following issues pitted states against each other◦ Representation and voting

in Congress◦ Payment for war expenses◦ Territorial claims in the

West

Secured recognition of American Independence

Created executive departments and admiralty courts (developed into Cabinet & Federal Court System)

Northwest Ordinance (1787)◦ Created process for territory to become

a state◦ Prohibited slavery in new territory◦ Guaranteed equality of new states

No power to tax◦ Caused problems paying off war debts

No power to force states to recognize agreements with foreign nations◦ Damaged trade relations

No power to make laws regulating trade among states

No power to makes laws directly regulating behavior of citizens

Amendments never passed since all 13 states needed to ratify

Many leaders proposed a meeting, or convention, to discuss changes

Delegates then met in Philadelphia to proposechanges to the Articles

100’s of farmers in MA gathered to prevent courts from selling their property◦ Many ex-soldiers were not

paid their wages, therefore falling into debt and losing their farms

Shays and his men attempt to capture weapons arsenal

Governor calls militia to put down rebellion

Fears generated by this and similar conflicts convinced many that a stronger national government was needed

Civil Discourse ◦ Reasoned discussion as opposed to emotional display.  

Constitutional Convention ◦ The meeting held in Philadelphia from May to September 1787 at

which the US Constitution was written.   Delegate

◦ (1) (noun) A person chosen to act for or represent others. (2) (verb) To entrust someone to represent your interests.

Federal System ◦ A form of government in which power is divided and shared between

a central government and state and local governments. National Government

◦ The organization having central political authority in a nation; the representative unit of political organization.  

Proportional Representation ◦ In the context of American government, the electoral system in which

the number of representatives for a state is based on the number of people living in the state. Proportional representation is used to determine the number of each state's representatives in the U.S. House of Representatives.

55 delegates from states (Framers) Ave. age 42, ¾ had served in Congress Most were prominent political leaders, &

very qualified◦ George Washington

Most respected Military Leader in nation◦ James Madison

Had greatest influence on organization of national govt.

◦ Benjamin Franklin 81, poor heath, but internationally renown

statesmen◦ Alexander Hamilton

Most prominent supporter of strong national gov’t

Thomas Jefferson◦ In Paris as US minister to France

John Adams◦ US ambassador to Great Britain

Patrick Henry◦ Refused to attend, suspicious of

convention / “I smell a rat!” State of Rhode Island

◦ Opposed to a stronger national government.

At least 7 states had to be present each day

While speaking, others had to listen Member could not speak more than 2x on

same question Committees appointed as necessary The convention’s proceedings kept secret

Many delegates wanted to completely scrap Articles, not just amend

Madison proposes new, stronger government Two governments, national & state (Federal system) Three braches of national government

◦Legislative – make laws (most powerful)◦Executive – enforce laws◦ Judicial – interpret laws

Legislature (congress) would have two branches◦House of Representatives – elected by the people◦Senate – Proposed by States, selected by the House

Representation from each state in both houses based on population or amount contributed to federal treasury. ◦ Proportional representation means that

states with a larger population have more representation

Congress would have power to make laws that states were not able to make◦ Example: regulating trade between states

This lesson examines:◦ The debate over what, or who, the national

government will represent.◦ The Great Compromise, which dealt with the

makeup of the House and Senate.◦ How population would be counted for

representation in the House.◦ How new states might receive representation in

Congress.

Great Compromise ◦ A plan accepted at the Philadelphia Convention in 1787 that

called for a Congress of two houses: in the upper house, or Senate, representation of the states would be equal, with each state having two senators; in the lower house, or House of Representatives, representation would be apportioned according to the population of each state, so that states with more people would have more representatives. Also called the Connecticut Compromise.

Three-Fifths Compromise ◦ Article I, Section 2, Clause 3 of the U.S. Constitution, later

eliminated by the Fourteenth Amendment. The clause provided that each slave should be counted as three–fifths of a person in determining the number of representatives a state might send to the House of Representatives. It also determined the amount of direct taxes Congress might levy on a state.

No disagreement over a two-house Congress Proportional representation was the issue James Madison – states should not be

represented as states in national government. Instead, representatives should serve the people.

Those who sought Equal representation thought national government derived from and represented the States, not the people.

Big states favored Proportional rep, small states favored Equal rep.

Similar to Articles of Confederation One house Congress, equal

representation Most delegates were convinced

that a unicameral Congress would not work, and NJ Plan voted down.

However, many small state delegates refused to accept Virginia Plan due to their concerns over large states’ power under proportional representation.

Disagreement over this issue almost ended the convention.

Great/Connecticut Compromise’s provisions◦ House of Representatives= Proportional Rep.◦ Senate = Equal Rep. (2 per state – chosen by

state legislature) Senate appeased small states, House

appeased big states The compromise passed by 1 vote

What did proportional representation mean? Southern states want slaves to count towards

representation Northern states thought counting them would

only benefit, and empower, slave owners◦ If they are considered property, why should property be

represented? The Compromise

◦ state’s population, in regards to apportioning representation, would be equal to free population plus 3/5ths slaves

◦ Slaves also counted as 3/5ths when computing taxes paid by each state to federal government

New states would have full representation in congress

A census would be taken every 10 years to reapportion seats in the House based on the shift in America’s population.

Deliberative Body ◦ A legislative assembly that meets to debate issues.  

Electoral College ◦ The group of presidential electors who cast the official votes for

president and vice president after a presidential election. Each state has a number of electors equal to the total of its members in the Senate and House of Representatives.

Necessary and Proper Clause ◦ Clause of the Constitution that gives Congress the power to make all

laws that are "necessary and proper" to carry out the powers specifically delegated to it by the Constitution. It is also known as the "elastic clause" because of the vagueness of the phrase "necessary and proper."  

Separated Powers ◦ The division of the powers of government among the different branches.

Separating powers is a primary strategy of promoting constitutional or limited government by ensuring that no one individual or branch has excessive power that can be abused.  

Shared Powers ◦ Legislative powers not completely separated between the branches of

government.  

Framers believed an imbalance of power had existed between the British Crown and Parliament◦Led to tyranny of British

Crown Many state government created

weak executives, but that led to legislative corruption

Delegates needed to create system of balanced powers (checks & balances)

Congress should be a deliberative body◦ Thorough debate, no hasty decisions

Bicameral legislature makes the passage of laws a bit difficult— DONE ON PURPOSE◦ Delegates felt power to make laws greatest power

Enumerated Powers are those specifically listed

Congress also granted powers deemed to be Necessary & Proper

Executive needed “energy” to act quickly when necessary for◦Common defense◦Preserve public peace◦ International relations

Must be strong enough to check power of legislature, but can not endanger republic Single chief executive needed, 4 year

term No limit set for reelection

Delegates reject idea of direct election◦ Citizens of a large country would “not know”

best candidates Other felt Indirect elections would be corrupt Instead, Electoral College proposed

◦ Organized every 4 years, then dissolved◦ Each state selects electors, the number based on

total members in Congress◦ Electors voted for two people (at least one

outside their home state)◦ Majority of votes wins presidency, 2nd place

becomes VP◦ If tie, House of Reps selects with majority vote

Judges chosen by President, confirmed by Senate Supreme Court is head of judiciary Judges independent of politics Cannot be removed unless accused & convicted of

high crimes

Veto◦ President can veto bill passed in Congress◦ Congress can override veto with 2/3 vote

Appointment◦ President nominates, Senate must approve

Treaties◦ President negotiates, Senate approves (2/3 vote)

War◦ President is commander in chief, Congress declares war &

controls $$$ Impeachment

◦ Congress can remove executive or judicial branch members if they commit high crimes

Judicial Review◦ Judicial branch (eventually) can determine whether acts of

Congress are Constitutional

Ex Post Facto Law ◦ A law that criminalizes an act that was not a crime when

committed, that increases the penalty for a crime after it was committed, or that changes the rules of evidence to make conviction easier. Ex post facto laws are forbidden by Article I of the Constitution.

Bill of attainder ◦ An act of the legislature that inflicts punishment on an

individual or group without a judicial trial. Secede

◦ Formal withdrawal by a constituent member from an alliance, federation, or association.

Supremacy clause ◦ Article VI, Section 2 of the Constitution, which states that the

U.S. Constitution, laws passed by Congress, and treaties of the United States "shall be the supreme Law of the Land" and binding on the states.

Tariff ◦ A tax on imported or exported goods. Also known as a duty.

Powers to the National Govt. ◦ Make or change state election laws ◦ Call state militias into national service◦ Create new states◦ Guarantee each state a “republican

form of government. ◦ Protect states from invasion or domestic

violence.◦ The Constitution& laws/treaties made

by Congress are “supreme law of the land” (Supremacy Clause)

Provisions protecting individual rights◦ Cannot suspend habeas corpus◦ Cannot pass ex post facto laws or bills of attainder◦ Cannot suspend trial by jury in criminal cases◦ Cannot modify definition of treason

Protecting rights of public officials◦ Members of Congress cannot be arrested during

session unless a major crime◦ No religious tests for public office◦ Impeachment clauses protect right to a fair trial◦ Government cannot take money from treasury without

an appropriation law

States cannot◦ Coin their own money◦ Pass laws that enable people to

violate contracts◦ Make ex post facto laws or bills of

attainder◦ Enter into foreign treaties or declare

war◦ Tax imports or exports◦ Keep troops or ships of war in peace

time◦ No discrimination against citizens of

other states◦ Not return fugitives from other states

Many delegates were opposed to slavery, kept terms out of Constitution (but protected institution)

Southern states considered slaves property, and property issues should be state matters

NC, SC, and GA would create their own nation if the Constitution interfered with slavery

Northern delegates agree to put in “fugitive slave clause” and not to interfere with slave trade until 1808.

Citizenship

Voting Rights

Where national power ends & state power begins◦ “Necessary & Proper

Clause”

State’s right to secede from the US

Anti–Federalists ◦ Opponents to ratification of the U.S. Constitution who believed

that it gave excessive power to the federal government and failed to protect the rights and liberties of the people.

Bill of Rights ◦ The first ten amendments to the U.S. Constitution. The Bill of

Rights lists many basic rights that the federal government may not interfere with and must protect. Nearly all these rights are now also protected from violation by state governments.

Ratification ◦ (1) Formal approval of some formal legal instrument such as a

constitution or treaty. (2) In U.S. constitutional history, the approval of the U.S. Constitution in 1788 by the ratifying conventions held in each state, except for Rhode Island, which initially voted the Constitution down by popular referendum.

Ratifying conventions set up in each state◦ Sole purpose was to debate

and approve/reject the Constitution

◦ Delegates elected by popular vote

9 States needed to ratify Constitution for it to go into effect

Provided an example of Social Contract Theory

As soon as delegates released the proposal, opposition emerged.

Anti-Federalists published objections in newspapers and pamphlets

Oppositions believed in reasoned discourse to educate citizens◦ They drew on political philosophy ad history to

make arguments. Americans read and discussed the arguments in

their homes, coffeehouses, taverns and public meetings across the nation.

Representative Government could only work in small communities of people with similar beliefs

In large nations, government no longer reflects wishes of most citizens, resorting to force to maintain authority

National govt. will reduce the power & role of local government.

Small, agrarian communities are more likely to have civic virtue than large, diverse nations

Strong national government needed in large nations have always destroyed republics

Each branch had potential for tyranny◦ No adequate limit on Congress’ necessary &

proper clause◦ President has unlimited power to grant

pardons◦ National courts could destroy state judicial

branches◦ The governemnt not truly representative as

the House of Reps has only 65 members out of 3 million citizens.

National government did not protect rights.

National governments power is so general and vague that it is essentially unlimited.

Nothing keeps government from violating all rights it does not explicitly protect.

State’s bill of rights does not protect against national government.

Bill of Rights would remind people of the principles of our political system.

“New Science of Politics" ◦ James Madison's term in The Federalist for a study of politics utilizing reason,

observation, and history that would help the Founders construct a new government on a rational and informed basis.

Faction ◦ (1) A small group within a larger group. (2) In its political sense, according to

James Madison in Federalist 10, a faction is a "number of citizens, whether amounting to a majority or a minority of the whole, who are united...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."  

Federalists ◦ Advocates for a strong central government who urged ratification of the U.S.

Constitution. They flourished as a political party in the 1790s under the leadership of Alexander Hamilton. The party disappeared from national politics in 1816.  

Majority tyranny ◦ A situation in which a majority uses the principle of majority rule but fails to

respect the rights and interests of the minority. See also majority rule   The Federalist

◦ A series of articles written for newspapers urging the adoption of the Constitution and supporting the need for a strong national government.

Federalists acted quickly so that Ant-Federalists would not have a chance to organize opposition.

Over ten months of debate, Hamilton, Madison, and Jay published Federalist Papers to convince people to support ratification.

They presented Constitution as a well-organized, agreed-upon plan that reflected a “new science of politics.”

Most Americans agreed that large republics were unsuccessful

Madison creates new theory that factions are greatest danger ◦ Factions promote own self-interest at the

expense of common good◦ Majority tyranny could be combated w/ a

republic◦ Large republic’s would reduce large factions◦ Representatives “refine” public views by

filtering out ideas based solely on self-interest.◦ Large republics would defeat dangers of faction.

Civic virtue alone will not protect people’s rights and promote their welfare. ◦ With many interests and factions in a large republic,

none would dominate Constitution’s organization (Checks & Balances)

promote goals of republicanism◦ Electoral system would ensure qualified representatives◦ Complicated system would prevent factions from serving own interests at expense of common good◦ Difficulty to pass laws was a good thing

Representation of different interests in the government will protect basic rights◦ In Legislative Branch, House

represents local interests, Senate represents state’s interests

◦ In Executive, President safeguards nation’s interests

◦ In Judicial, Supreme Court ensures good judgments since they are independence of politics, responsible only to Constitution.

June 1788, 9 states voted to ratify.

NY or VA not needed, wealthy & populous

Federalists agreed to add a Bill of Rights during first Congress, depriving Anti-Fed’s of their most powerful argument.

NC and RI eventually forced to ratify by 1790 or else be treated as foreign nations.