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Constitutional Foundations:
                               Institutions & Compromises

                                 Barbour and Wright, Chapter 2




Wednesday, February 11, 2009
Purpose of Government
                • All governments must have power to:
                      • Legislate, or make laws
                      • Administer, or execute laws
                      • Adjudicate, or interpret laws
                • Who had these powers under the English system?
                • Who had these powers under the Articles of
                    Confederation?


Wednesday, February 11, 2009
Constitutional Crafting
                                       • Delegates to the convention
                                         represented varying ideals, values,
                                         goals and interests

                                       • The process of crafting the
                                         Constitution was a series of
                                         compromises between varying
                                         interests

                                          • Virginia Plan vs. New Jersey Plan
                                       • Recognition that the document wasn’t
                                         perfect, but still served founders’
                                         democratic ideals

Wednesday, February 11, 2009
Separation of Powers

                • “Government should be set up so that
                     no man need be afraid of another” —
                     Baron de Montesquieu

                • Cannot have single person or body
                     exercising all three powers of
                     government in case of corruption

                • In practice, total separation is not
                     possible, however; this principle is key
                     to the US Constitution


Wednesday, February 11, 2009
Checks and Balances

                   • Allows each of the branches to police the
                        others—checking abuses and balancing
                        powers

                   • What are some examples of checks and
                        balances built into the Constitution?

                   • Results in a totally new system of government
                        in which no branch can act independently, yet
                        none is wholly dependent either


Wednesday, February 11, 2009
Issue: Sovereignty

                   • Under Articles of Confederation, states held
                        the ultimate legal and political authority

                          • Many delegates only wanted minor revisions
                               to the Articles to preserve state sovereignty

                               • New Jersey Plan
                   • Why were states’ rights so important to early
                        Americans?


Wednesday, February 11, 2009
Compromise: Federalism
             • Under federalism, the people are sovereign and
                 their contract with the government is the
                 Constitution

             • The Constitution grants a national government
                 its own source of power while also reserving some
                 powers solely for the states

             • Federalism also serves as an additional vertical
                 check and balance on governmental power

             • Federalists vs. Anti-federalists
Wednesday, February 11, 2009
Legislative Branch

              • Role in government is to legislate
                  or create laws

              • Even with checks and balances,
                  Madison’s notes show that most
                  delegates intended for the
                  legislative branch to be the most
                  powerful

              • Why?


Wednesday, February 11, 2009
Issue: State Representation

                                  • Delegates from small states
                                    wanted 1 state, 1 vote

                                     • New Jersey Plan

                                  • Delegates from large states
                                    wanted the representation to be
                                    proportional to population

                                  • Example pg. 52


Wednesday, February 11, 2009
Compromise:Bicameralism
               • Two houses of legislative branch (Congress)
                     • House of Representatives
                               • Determined by state population giving large states
                                 greater representation

                     • Senate
                               • Each state allotted only two, giving small states greater
                                 representation

               • Key: Most legislation requires approval of both houses so
                    large & small states have to work together—check/balance


Wednesday, February 11, 2009
Issue: Counting Population

                 • Need to determine population in order to allot House of
                      Representatives seats

                 • African Americans accounted for nearly 1/4 of population
                 • Southern states want to count slaves in the population, but
                      have no intention of letting them vote

                        • Why did they want to count slaves?
                 • Northern states had far fewer slaves and argued they
                      should only count if they got to vote



Wednesday, February 11, 2009
Compromise: 3/5ths

         • Although Constitutional
              language is vague, it essentially
              meant that non- free persons
              would count as three-fifths of a
              person—or 3 out of 5 would be
              counted

         • Delegates did not tackle issue of
              slavery head-on

         • Why not?


Wednesday, February 11, 2009
Issue: Congressional
                                     Election
                 • Direct democracy is not possible; delegates forming a
                      republic, a representative democracy

                 • Direct Election: Congress should be most powerful branch
                      and closest to the people to reflect their diversity

                        • Leads to more accountability and greater confidence
                 • Other method of selection e.g. state legislatures
                        • Voters have inadequate information, can be duped
                        • Direct election not practical

Wednesday, February 11, 2009
Compromise: Bicameralism
               • House of Representatives directly elected by the
                   people

                     • Greater numbers = more diversity
                     • Shorter terms (2 years) = more accountability
               • Senate to be selected by State Legislatures
                     • More deliberative, non-reactive
                     • Nod to states’ rights

Wednesday, February 11, 2009
Executive Branch
         • Role is to execute and administer the laws
         • Delegates fearful of a strong executive
               • Don’t want to create a monarch or dictator
         • Some delegates wanted multiple executive-power spread out
               • New Jersey Plan
         • Others want a single executive-more efficient
               • Virginia Plan
         • Issues over how best to limit president’s power
Wednesday, February 11, 2009
Issue: Limit Executive Power
                 • Delegates settled on a single executive but built in checks
                      on his power

                        • Madison: “Confine and define” executive power
                 • Completely new position: republican executive
                 • Compromise: Limit power with 4-year terms
                 • Compromise: Advice and consent of Senate in
                      appointments

                 • Compromise: No power to declare war
                 • Compromise: Add vice president in case of emergencies

Wednesday, February 11, 2009
Issue: Presidential Selection
                • Some delegates advocating for direct election
                      • Accountability, more democratic
                • Other delegates support alternative methods of selection
                      • State Legislatures
                      • Congress (parliamentary-type system)
                      • States divided into voting districts, select electors
                • Why not direct election?


Wednesday, February 11, 2009
Compromise:
                               Electoral College
          • Each state alloted number of electors equal to
              the number of Congressional seats

                • Ex. Ohio: 11.4 million people = 20 EVs
                     Ex. Idaho: 1.3 million people = 4 EVs

          • States determine how electors function
                • Winner take all, electors legally bound
                • Winner take all, electors not legally bound
                • EVs split proportionally or otherwise

Wednesday, February 11, 2009
Issue: Presidential Veto
                                          • Veto is president’s power to
                                            override Congress

                                             • Some want absolute veto

                                             • Some want Council of
                                               Revision

                                             • Some want no veto power

                   Compromise: Limited veto; Congress can overturn with
                   2/3 vote—more checks/balances

Wednesday, February 11, 2009
Judicial Branch

              • Role is to interpret laws and judge
                   whether they have been broken

              • Constitution is brief and vague

                     • Establishes Supreme Court and
                         leaves inferior courts up to
                         Congress

              • Later case law allows for judicial
                   review


Wednesday, February 11, 2009
Issue: National Judiciary
                   • New Jersey Plan called for no national court
                        system, but a continuation of the state courts
                        as under Articles of Confederation

                   • Virginia Plan calls for a national judiciary only
                   • Compromise: Federalism
                          • Federal judiciary establishes a national court
                               system while still allowing for state and local
                               courts


Wednesday, February 11, 2009
Issue: Judicial Appointment
                   • Some delegates argued that the president should be
                        responsible for selecting judges

                          • He would be held to greater accountability for bad
                               choices

                   • Others thought judges ought to be selected by Congress
                          • Too much power to give to a single executive
                   • Compromise: President selects judges, must be voted
                        upon by the Senate



Wednesday, February 11, 2009
Issue: Amendments
                   • Some delegates wary of Constitution because provisions
                        in Bill of Rights were not included

                   • Others argue Bill of Rights not necessary, even harmful
                   • Compromise: Provisions for amending the Constitution
                          • Proposed by 2/3 vote of Congress or a national
                               convention called at the request of 2/3 of state
                               legislatures

                          • Approved by 3/4 of state legislatures or ratifying
                               conventions of 3/4 of states


Wednesday, February 11, 2009
Federalists & Anti-federalists
           • Effort to make the Constitution as broadly
                appealing as possible

                  • Federalists want to account for human propensity
                       for selfishness and corruption; need for larger
                       government

                  • Anti-federalists want smaller government that
                       will be more accountable and less corruptible

           • Series of essays written by both sides arguing the
                merits and faults of the Constitutional system

Wednesday, February 11, 2009
Ratification
     • Needed 9 states (3/4) to ratify the Constitution
           • Delaware, New Jersey, Georgia vote for unanimously
           • Connecticut, Pennsylvania, Maryland, South Carolina
                strongly support

           • Massachusetts, Virginia, New Hampshire, New York
                ratify narrowly

           • North Carolina fails to ratify; later ratifies
           • Rhode Island refused to call a convention; later ratifies
Wednesday, February 11, 2009

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Constitutional Foundations: Instutionas and Compromises 2009

  • 1. Constitutional Foundations: Institutions & Compromises Barbour and Wright, Chapter 2 Wednesday, February 11, 2009
  • 2. Purpose of Government • All governments must have power to: • Legislate, or make laws • Administer, or execute laws • Adjudicate, or interpret laws • Who had these powers under the English system? • Who had these powers under the Articles of Confederation? Wednesday, February 11, 2009
  • 3. Constitutional Crafting • Delegates to the convention represented varying ideals, values, goals and interests • The process of crafting the Constitution was a series of compromises between varying interests • Virginia Plan vs. New Jersey Plan • Recognition that the document wasn’t perfect, but still served founders’ democratic ideals Wednesday, February 11, 2009
  • 4. Separation of Powers • “Government should be set up so that no man need be afraid of another” — Baron de Montesquieu • Cannot have single person or body exercising all three powers of government in case of corruption • In practice, total separation is not possible, however; this principle is key to the US Constitution Wednesday, February 11, 2009
  • 5. Checks and Balances • Allows each of the branches to police the others—checking abuses and balancing powers • What are some examples of checks and balances built into the Constitution? • Results in a totally new system of government in which no branch can act independently, yet none is wholly dependent either Wednesday, February 11, 2009
  • 6. Issue: Sovereignty • Under Articles of Confederation, states held the ultimate legal and political authority • Many delegates only wanted minor revisions to the Articles to preserve state sovereignty • New Jersey Plan • Why were states’ rights so important to early Americans? Wednesday, February 11, 2009
  • 7. Compromise: Federalism • Under federalism, the people are sovereign and their contract with the government is the Constitution • The Constitution grants a national government its own source of power while also reserving some powers solely for the states • Federalism also serves as an additional vertical check and balance on governmental power • Federalists vs. Anti-federalists Wednesday, February 11, 2009
  • 8. Legislative Branch • Role in government is to legislate or create laws • Even with checks and balances, Madison’s notes show that most delegates intended for the legislative branch to be the most powerful • Why? Wednesday, February 11, 2009
  • 9. Issue: State Representation • Delegates from small states wanted 1 state, 1 vote • New Jersey Plan • Delegates from large states wanted the representation to be proportional to population • Example pg. 52 Wednesday, February 11, 2009
  • 10. Compromise:Bicameralism • Two houses of legislative branch (Congress) • House of Representatives • Determined by state population giving large states greater representation • Senate • Each state allotted only two, giving small states greater representation • Key: Most legislation requires approval of both houses so large & small states have to work together—check/balance Wednesday, February 11, 2009
  • 11. Issue: Counting Population • Need to determine population in order to allot House of Representatives seats • African Americans accounted for nearly 1/4 of population • Southern states want to count slaves in the population, but have no intention of letting them vote • Why did they want to count slaves? • Northern states had far fewer slaves and argued they should only count if they got to vote Wednesday, February 11, 2009
  • 12. Compromise: 3/5ths • Although Constitutional language is vague, it essentially meant that non- free persons would count as three-fifths of a person—or 3 out of 5 would be counted • Delegates did not tackle issue of slavery head-on • Why not? Wednesday, February 11, 2009
  • 13. Issue: Congressional Election • Direct democracy is not possible; delegates forming a republic, a representative democracy • Direct Election: Congress should be most powerful branch and closest to the people to reflect their diversity • Leads to more accountability and greater confidence • Other method of selection e.g. state legislatures • Voters have inadequate information, can be duped • Direct election not practical Wednesday, February 11, 2009
  • 14. Compromise: Bicameralism • House of Representatives directly elected by the people • Greater numbers = more diversity • Shorter terms (2 years) = more accountability • Senate to be selected by State Legislatures • More deliberative, non-reactive • Nod to states’ rights Wednesday, February 11, 2009
  • 15. Executive Branch • Role is to execute and administer the laws • Delegates fearful of a strong executive • Don’t want to create a monarch or dictator • Some delegates wanted multiple executive-power spread out • New Jersey Plan • Others want a single executive-more efficient • Virginia Plan • Issues over how best to limit president’s power Wednesday, February 11, 2009
  • 16. Issue: Limit Executive Power • Delegates settled on a single executive but built in checks on his power • Madison: “Confine and define” executive power • Completely new position: republican executive • Compromise: Limit power with 4-year terms • Compromise: Advice and consent of Senate in appointments • Compromise: No power to declare war • Compromise: Add vice president in case of emergencies Wednesday, February 11, 2009
  • 17. Issue: Presidential Selection • Some delegates advocating for direct election • Accountability, more democratic • Other delegates support alternative methods of selection • State Legislatures • Congress (parliamentary-type system) • States divided into voting districts, select electors • Why not direct election? Wednesday, February 11, 2009
  • 18. Compromise: Electoral College • Each state alloted number of electors equal to the number of Congressional seats • Ex. Ohio: 11.4 million people = 20 EVs Ex. Idaho: 1.3 million people = 4 EVs • States determine how electors function • Winner take all, electors legally bound • Winner take all, electors not legally bound • EVs split proportionally or otherwise Wednesday, February 11, 2009
  • 19. Issue: Presidential Veto • Veto is president’s power to override Congress • Some want absolute veto • Some want Council of Revision • Some want no veto power Compromise: Limited veto; Congress can overturn with 2/3 vote—more checks/balances Wednesday, February 11, 2009
  • 20. Judicial Branch • Role is to interpret laws and judge whether they have been broken • Constitution is brief and vague • Establishes Supreme Court and leaves inferior courts up to Congress • Later case law allows for judicial review Wednesday, February 11, 2009
  • 21. Issue: National Judiciary • New Jersey Plan called for no national court system, but a continuation of the state courts as under Articles of Confederation • Virginia Plan calls for a national judiciary only • Compromise: Federalism • Federal judiciary establishes a national court system while still allowing for state and local courts Wednesday, February 11, 2009
  • 22. Issue: Judicial Appointment • Some delegates argued that the president should be responsible for selecting judges • He would be held to greater accountability for bad choices • Others thought judges ought to be selected by Congress • Too much power to give to a single executive • Compromise: President selects judges, must be voted upon by the Senate Wednesday, February 11, 2009
  • 23. Issue: Amendments • Some delegates wary of Constitution because provisions in Bill of Rights were not included • Others argue Bill of Rights not necessary, even harmful • Compromise: Provisions for amending the Constitution • Proposed by 2/3 vote of Congress or a national convention called at the request of 2/3 of state legislatures • Approved by 3/4 of state legislatures or ratifying conventions of 3/4 of states Wednesday, February 11, 2009
  • 24. Federalists & Anti-federalists • Effort to make the Constitution as broadly appealing as possible • Federalists want to account for human propensity for selfishness and corruption; need for larger government • Anti-federalists want smaller government that will be more accountable and less corruptible • Series of essays written by both sides arguing the merits and faults of the Constitutional system Wednesday, February 11, 2009
  • 25. Ratification • Needed 9 states (3/4) to ratify the Constitution • Delaware, New Jersey, Georgia vote for unanimously • Connecticut, Pennsylvania, Maryland, South Carolina strongly support • Massachusetts, Virginia, New Hampshire, New York ratify narrowly • North Carolina fails to ratify; later ratifies • Rhode Island refused to call a convention; later ratifies Wednesday, February 11, 2009