The Framing of the U.S. Constitution and the Distribution of Power

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1 The Framing of the U.S. Constitution and the Distribution of Power Goals for this Section: Decision & Compromise Separation of Powers Checks and Balances The Great Compromise The 3/5 Compromise Amendability Ratification Political Science 1 Tamina R. Alon, Laney College Goals of the Constitution 1. Resolve problems regarding trade and duty among the 13 states 2. Protect overseas interests (commercial and diplomatic) 3. Cement the financial, property, and commercial interests of the Elite class (including property in slaves) 4. Defend the elites from the tyranny of the masses and the leveling of society = Central Government Government Power in Institutions All governments must have the power to do three things: Legislate (make laws) Administer (execute laws) Adjudicate (interpret laws) Separation of Powers Decision: How to allocate these powers without creating a tyrannical institution? Compromise: Instead of one power wielder, make 3 who have to share power and who check on each other Separation of Powers: The constitutional doctrine of dividing governmental power among the legislative, executive, and judicial branches The 3 Branches of US Government! Legislative Branch Legislate (make laws) Executive Branch Administer (execute laws) Judicial Branch Adjudicate (interpret laws) CONGRESS PRESIDENT COURT 1

2 Separation of Powers Political Process POWER Where? Institutions EXECUTIVE Enforces Laws Makes Laws Interprets Laws GOVERNMENT Checking and Balancing Power First step: Separation of Powers creates 3 branches Next step: Share power among the branches Founders recognized that branches would seek power at the expense of other branches Checks and Balances: The constitutional doctrine in which each branch of government shares some of the powers of the other branches in order to limit their actions. Makes Laws Checks and Balances EXECUTIVE Enforces Laws Interprets Laws Legislature Makes A Law Checks and Balances in Practice EXECUTIVE Veto Law Each branch utilizes its powers to keep the others in check. Interpret the Law Congress refuses to fund the order Checks and Balances in Practice EXECUTIVE President Makes an Executive Order Fails to Confirm Checks and Balances in Practice EXECUTIVE Appoint Judges Declares Laws Unconstitutional 2

3 How Strong a Central Government? Name of the Game: COMPROMISE Within 55: Competing Interests Northern States v. Southern States Big States v. Small States Slave Economies v. Commerce Economies States Power v. National Power Why Compromise? They couldn t achieve their goals alone Some power is better than no power Federalism Federalism: A political system in which power is divided between central and regional units Federal = National/Central Federal = Central + State Federalism = Power given to States and Nation Contrast with Confederation: A political system in which States hold all of the power Federalists v. Anti-Federalists Federalists Favored a strong central government with federal powers Later would be supporters of the Constitution during ratification Anti-Federalists Favored a weak central government with strong state powers Small States v. Large States Everyone wants to create RULES in their favor How? RULES Achieve your goals While still crafting RULES in your favor Competing Plans After deciding that Federalism would be the framework = system Federalism: States get power and Nation/Central Government gets power Decision: How much power to allot among the states? Virginia Plan New Jersey Plan Virginia Plan by: James Madison & presented by Edmund Randolph Power: Strong national government (override State Law) Legislative: Two houses (bicameralism) 1: Elected directly by the people 2: Elected indirectly by combination of state legislature and popularly elected house #1 Number of representatives determined by: taxes paid Benefitted: Large States (VA,MA & PA would be able to form a majority) Executive: Single person appointed by legislature Judiciary: National appointed by legislature 3

4 New Jersey Plan Two Competing Plans by: William Paterson Power: States retain much of the power Reinforcement of Articles of Confederation (not recreate) National govt still dependent on States for some funding Legislative: One House (unicameralism) 1: Each State has one vote (delegate chosen by State Legislature) Congressional acts would be supreme law of the land Number of representatives determined by: 1 each Benefitted: Small States (Small states together could block what the larger states wanted) Executive: Multi-person appointed by legislature The Virginia Plan Bicameral legislature Representation in both based on population One house elected by the people; one house elected by state legislatures Single executive chosen by Congress Favored by large states The New Jersey Plan Unicameral legislature Equal representation Representatives elected by state legislatures Multi-person executive Favored by small states The Great Compromise Power: Strong Federal structure headed by a central government with sufficient powers Legislative: Two Houses (bicameralism) 1: House of Representatives: based on population and elected: directly by the people 2: Senate: each state gets two votes and elected: indirectly by state legislatures (also two houses would slow down legislation) Benefitted: Both since legislation needs both houses Executive: Single person Judiciary: National system Northern v. Southern States Population Decision: How will population be determined for purposes of representation in House of Reps? Southern States: Count slaves No intention of letting slaves vote Northern States: Do not count Slaves Because they cannot vote 3/5 Compromise 3/5 Compromise: Each slave would count as three-fifths of a person Every 5 slaves = 3 people Representatives and taxes shall be determined according to population, figured 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. Goals for this Section: Article IV, V, VI, VII Amendability Ratification 4

5 Preamble 7 Articles The Structure of the Constitution as Signed Article I: The Legislative Branch Article II: The Executive Branch Article III: The Judicial Branch Article IV: The States Article V: Amendments Article VI: Debts, Supremacy, Oaths Article VII: Ratification Weeks 6-8 Article IV: States 1. Full Faith and Credit Clause: States must respect the civil laws, records, and court rulings of other states. 2. Privileges and Immunities Clause: States may not discriminate against citizens from other states. (e.g. can t limit jobs to state residents) 3. Extradition: Governor can demand a fugitive be surrendered if he has fled to another state. 4. Fugitive Slave Clause: Slaveholders could go into free states to capture escaped slaves. Article V: Amendability Amend = change, make better Decision: keep the Constitution rigid or allow it to grow? Rigidity may lead to illegitimacy Political Process POWER Government Legitimate Power ( Authority ) 2 Methods of Amendment Formal Amendment Process outlined in the Constitution 9750 Amendments introduced 27 Amendments were added Informal Amendment Court interpretation due to vagueness of Constitutional language Court amendment happens more frequently Formal Amendment Informal Amendment Examples: extended Bill of Rights protections to state actions, prohibited child labor, extended equal protection of the laws to women Strict v. Loose Constructionists Strict: the literal word of the founders must be adhered to Loose: the constitution is a living document and we must be flexible because the founders could not anticipate everything 5

6 No-Amendment Clause Article V specifically states that the Constitution may not be amended in only 2 instances: 1. Congress may not prohibited slavery before 1808 Article VI: Debts, Supremacy, & Oaths Supremacy Clause: The Constitution shall be the Supreme Law of the Land Second highest laws: federal statutes and US treaties Then: state laws 2. No one can deprive States of their equal vote in the Senate without their consent Article VII: Ratification Ratification: Process of voting on and approving Constitution needed 9 state conventions to ratify it NJ, DE, GA: unanimous CT, PA: strongly in favor MD, MA, SC: also ratified Needed one more! Ratification Battlegrounds VA, NY, NH, RI, SC are still in play Federalists and Anti- Federalists try to persuade states Fiercest debates in VA, NY, and NH Ben Franklin John Adams A. Hamilton Federalists v. Anti-Federalists Economic stake in new nation Wanted security, order, popular control More aggressive and organized in their media blitz (Federalist Papers) Patrick Henry Sam Adams John Hancock Rural roots and values, anticorruption We don t need to be a world power More easy to watch and control state governments Wanted a Bill of Rights #10 The Federalist Papers Madison warns of political factions The most dangerous is the mass or propertyless whose behavior was threatening to property owners under the Articles Called for a republic with representatives to dilute the effects of factions #51 Madison suggests Checks and Balances and Separation of Powers as institutions to protect against tyranny of majority #84 Hamilton says Bill of Rights is not necessary and would actually be dangerous to add to the Constitution 6

7 We Want a Bill of Rights! Some states refused to ratify without a Bill of Rights Listing of protections against government infringement of individual rights guaranteed to citizens by the government itself NC defeated the Constitution (193-75) RI refused to call a convention to put it to a vote A Bill of Rights was promised A Bill of Rights Eventually, all 13 states ratified the Constitution The last states ratified in 1789 (North Carolina) and 1790 (Rhode Island). The Bill of Rights (the first 10 Amendments) was written in All rights to citizens came out of the Amendments Amendment I 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. Amendment II 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. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X 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. Federalism Read Ch. 3: Federalism Political Science 1 Tamina R. Alon, Laney College 7

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