An Introduction to the Constitution; or, Political Culture Part II We have already seen that questions about political culture (the words & ideas that people use to think and talk about government) shaped the coming of the American Revolution. But once the colonies declared independence from England, they immediately had to address new political problems. What kind of government(s) would they have now? Would they replace the British king with an American one? Would they try another form of government? How would it work? These questions—both the general and the very practical—had to be hammered out in every state and also at the national level at the same time as the colonists were fighting for the life of their new country. Each effort to establish a new government represented a different take on what became a set of experiments in republican government.
Step 1: Quick review of political culture before the war.
PUT UP CHARTS & EQUATIONS FROM PREVIOUS DAY.
Recall that for 18th century Britons, a balanced mixed government (representing the parts of society) + respect for the Rights of Englishmen = Liberty.
Also recall that these folks saw power as a danger to liberty. Power (which government necessarily had) could get out of control through Usurpation (power grab) or Corruption and become Tyranny, which squashed Liberty.
Step 2: Once they declared war, the colonists could not replicate mixed government because they lacked two of the three parts of society that made it up. Inspired by the Enlightenment and by Tom Paine’s words, revolutionary leaders decided to create republics—governments in which the people rule themselves through elected representatives without any king. [DISTINGUISH BETWEEN A MONARCHY, A DEMOCRACY, AND A REPUBLIC—WE ARE STILL REALLY A REPUBLIC]. There were some serious problems to consider though. Republics were historically small, homogenous, and fragile. American republics were not small, not homogenous, and hoped not to be fragile. These fledgling republics would have to be protected against many dangers:
-War, of course
-Power grabs—a strong executive, someone making himself king; too much government.
-Corruption—not enough respect for the rights of the people; members of the government too interested in their own concerns and not in the common good.
-(a new one) License—too much rule by the masses; they didn’t trust ordinary people to govern themselves
ILLUSTRATE WITH THE POWER EQUATION—ADD A NEW PIECE FOR LICENSE
Step 3: The most revolutionary idea for limiting the power of government, perhaps, of the whole revolution was the one that each colony adopted almost without discussion. A written constitution—a document laying out the structure and the powers of government that comes before government. NOT LAWS—HOW YOU MAKE LAWS AND WHAT THEY CAN GOVERN, and more. The government must operate within this structure. [Note: If you were making a classroom constitution, then, it would not list the rules of the classroom—listen, do your best work, hand in your homework at 8:30. Rather it would explain what powers the teacher has, what powers the students have, how decisions get made. The rules for the classroom would come AFTER.] Everybody agreed that this was the first thing to do. Novelty—remember the English constitution was written and meant the things that “constituted” the government. This is a whole new idea.
Step 4: What kind of republican government? A proposal, and three experiments
John Adams, Thoughts on Government (1776)—separation of powers (rather than mixed government); balance of powers (to limit gov’t power)—two houses of legislature, veto, independent judges. [MAKE CARDS!] Still sees government as sovereign. Over the course of the next few years, states experimented with these ideas. And changed their idea of the relationship between government & people.
-Began with a Bill of Rights, very specific and long (see handout)
-Legislature was sovereign, choosing governor & council & judges
-No veto for governor.
-Bicameral legislature where the upper houses had higher property qualifications and was smaller than the lower house.
-Written by the House of Burgesses.
-Lots of states copied this plan
-Because the colonial government had been overthrown, they convened a special convention to write the constitution.
-Unicameral assembly and plural executive body of 12 men.
-All freemen who paid taxes—and adult sons living at home—could vote.
-BUT to take office, people had to take an oath to uphold the constitution, which effectively disfranchised Quakers, German pacifists, and loyalists. Kept power until 1790.
-Bitter debates over who would write the constitution. Western counties objected that they were underrepresented in the colonial assembly and couldn’t get a fair deal. Berkshire county threatened to secede.
-Called a special constitutional convention in 1779.
-Followed John Adams outline (he wrote it) and began with a short statement of rights.
-RATIFIED by a special election in which all free adult males were eligible to vote.
Step 5: A question of rights
These three states not only experimented with the structure of government and moved toward the idea that the people are sovereign (a government of, by, and for the people). They also wrestled with a second question raised by the decision to have republics and written constitutions: How are the people’s rights to be guaranteed? Are those rights guaranteed by the fact of representative government? Or do they need to be spelled out? These three states included bills of rights in their constitution—spelling out the rights of the people. Sometimes, as in VA, these were many and resembled the rights of Englishmen—plus some new ones like separation of church & state. In other cases, such as Massachusetts, these rights echoed the language of the Declaration of Independence—natural rights such as life, liberty, and property without specifying other rights.
All these questions became important in the next round of constitution-writing—the government of the nation as a whole.
Step 6: Articles of Confederation
Remember that the idea of the United States as a country was just as new as everything else. The colonies had refused to unite in war only 20 years earlier. They were reluctant to give any power to a national union and feared the kind of power a national government might have. The first document creating a national government reflected these concerns as well as the fact that the new United States were [they used the plural] at war.
LET’S TAKE A LOOK AT THE OUTLINE OF THE ARTICLES OF CONFEDERATION. [HANDOUT] Take a few minutes with your group to look at this outline.
-Mark in blue sections that reflect discomfort with the idea of a national government or the newness of this idea.
-Mark in red the sections that reflect the government’s critical need to fight a war and establish alliances.
-What was the structure of the new government?
-What were the main jobs of this new government?
-How did these jobs limit what states could do?
-How were the rights of the states protected in this new government?
-Imagine you were a citizen of Pennsylvania in 1783. Would you be more affected by your state government or by the national government? Why?
REPORT OUT ON THESE QUESTIONS. WHAT PROBLEMS MIGHT ARISE FROM THIS DOCUMENT? WHAT MIGHT THE NATIONAL GOVERNMENT NEED TO DO THAT’S NOT COVERED? WHAT ASPECTS OF THE GOVERNMENT MIGHT MAKE IT HARD TO GET THINGS DONE?
Step 7: The Road to the Constitution
-Problems with the Articles (as discussed)
-Western Unrest: unhappy with their representation in their states, some western areas sought to secede and form new states (such as “Franklin”)
-Shays’ Rebellion: Over the question of debt relief. First a rebellion. But the real punch was when the farmers got together and voted in representatives who supported their views. Merchants, etc., saw this as too much power to the people.
Why might this have caused some American leaders to be upset?
Step 8: Writing the Constitution—the next big experiment—federalism
Congress called a convention to fix the Articles.
-Bicameral legislature, which would choose the executive and judiciary
-Both houses apportioned by population. (Bigger states get more representatives).
-All powers of Congress under the Articles of Confederation.
-PLUS the power to “legislate in all cases to which the separate States are incompetent.”
-PLUS the power to veto state laws that seemed contrary to the national constituiton
New Jersey Plan:
-Keep the structure of government the same as under the Articles
Great Compromise: The decision to start from scratch and to create a national government that was structured quite differently from the Articles of Confederation. This new government followed the model John Adams had laid out for the Massachusetts constitution and thus benefited from the experiments state governments had tried. – Congress, President, Supreme Court.
But the framers of the constitution had to take on a set of issues that state governments had not confronted.
-Within the government, balance large & small states
-Balance slave & free states
-Balance need for a stronger central government with the notion that people were best protected by state governments (federalism)
-Protect people from too much government while ALSO protecting the government from too much say by the people.
HAND OUT THE CONSTITUTION OUTLINE
-Compare the structure of the government under the constitution with that under the Articles. Draw this.
-Compare the powers of Congress under the Constitution with those under the Articles. What new powers did Congress get? What limits were there on Congress’s powers?
-What parts of the Constitution have to do with slavery? (Mark them—try to find four)
-How were the powers of states protected in the Constitution?
-What rights (e.g. Rights of Englishmen or natural rights) can you find embedded in the Constitution?
REPORT OUT—GO OVER THE PROBLEMS ABOVE AND THEN THE QUESTIONS THEY JUST ADDRESSED.
Step 9: Ratification and the Bill of Rights
One difference from the Articles of Confederation is that the states did not have to unanimously ratify the Constitution, which was a good thing since there was a lot of conflict. Many Americans saw the Constitution—and the writing of it—as a usurpation of power. States had lost power, the national government had a lot of power (comparatively speaking). Representation seemed pretty far away. Even congressional districts were bigger than some of America’s biggest cities. How could this be a government of the people?
The debate over whether to adopt the constitution fell into two camps:
Federalists: who supported a federal government under the constitution (sharing power between state and national governments). Their arguments were most clearly expressed in the Federalist Papers (written by Alexander Hamilton, James Madison, and John Jay in support of ratification of the constitution).
Anti-federalists: who objected to the Constitution and preferred a revision of the Articles of Confederation, fearing that this gave too much power to a distant central government and warning that this system would allow only wealthy people to participate in government.
Most states were quite divided. [MAP??]
One thing the anti-federalists insisted on was that this new national government must have a Bill of Rights. The Constitution was ultimately ratified with the promise that the first Congress would pass a series of amendments (proposed 18, ratified 10) to enumerate Americans’ rights and protect them in the Constitution. (Duly passed and ratified in 1791.)
HAND OUT THE BILL OF RIGHTS
It’s pretty dense. How many rights can you spot? Divide into groups with each getting a few clauses.
Do you recognize Rights of Englishmen? Unpack #9 and #10.
Step 10: A Living Document
The Constitution was not written by its founders to be the final word on everything that would happen in the United States. It is not a set of rules but a set of guidelines. Indeed, as soon as the Constitution was passed, Americans began to wrangle (or continued to wrangle) over what it meant. Remember that a republic was fragile. They were deeply committed to getting this right, and deeply afraid that if they didn’t, they would destroy the republic. Three questions illustrate the ongoing conflict over the meaning and use of the constitution, just in the first decade of its existence.
As discussed—the Bill of Rights. Federalists argued that it was unnecessary because the form of government and the rights in the constitution and at the state level would protect everyone’s rights sufficiently. Anti-federalists disagreed.
Political Parties: In Washington’s first term, Thomas Jefferson & Alexander Hamilton came to verbal blows over constitutional questions having to do with money. Hamilton wanted Congress to charter a national bank to help stimulate the American economy, especially manufacturing. Jefferson strongly opposed the bank, arguing that the constitution does not explicitly say that Congress can charter corporations—thus the bank is unconstitutional. Hamilton replied that the framers of the constitution could not have foreseen all eventualities. Since chartering a corporation was not expressly forbidden, it was ok. For our purposes, the important thing here is not the bank. The important thing is that Hamilton & Jefferson disagreed about how to interpret the constitution—laying the groundwork to this day for a debate about strict vs. broad interpretation. AND their views created the first political parties, centered around this question as well as others. Are political parties constitutional? The constitution is silent on this issue. Madison argued, at first, that they were bad—factions, prone to corrupt liberty by allowing politicians to focus o their on interests instead of the common good. But by 1800 he was arguing the opposite—that parties force people to work together for the common good, and even that power is the guarantor of liberty, not its enemy.
The Supreme Court: What happens if the government itself acts in a manner that is unconstitutional? Again the constitution is silent on this matter. But in the late 1790s and early 1800s, the question came up. Congress passed a law saying that a person who spoke ill of the president or the government could be fined and jailed. [WHAT’S WRONG WITH THIS? HOW IS IT TO BE FIXED?] This led to two views—that the states check the federal government by refusing to follow unconstitutional laws; OR that the courts (and the supreme court) must necessarily use the written constitution as a standard by which to judge laws. If they do not meet the constitutional test, they are overturned.
As a consequence of this development, we still turn to the courts today to test whether a law—or even a constitutional amendment—is constitutional. So the constitution is something that affects us everyday—it sets the standard by which our government operates and by which the courts test laws against our rights. But it is open to interpretation and to change, so that Americans continue to create our republic as times (and the political culture) change.