Friday, October 13, 2017

10/13 Federalism



Ramon de Elorriaga,  "Washington's Inauguration," 1889
 April 30th, 1789, Federal Hall, New York
Trinity Church is in the background which is also still there today

The high point of Federalist influence in the country was the inauguration of George Washington in 1789,  after designing the Constitution and successfully arguing to get it ratified by the states. For more than a decade, the Federalists would control government. After 1800, they rapidly fade away as a political force in the country and never gain dominance again (at least not in the same form or same name).


This will be the final lecture of the first part of the course explaining the origins and the genesis of the American political system. The final development to be explained is the emergence of the party system, which emerged separately from the Constitution. There is nothing in the Constitution that provides for the establishment of political parties, and as we will see, in the first decade of the operation of the new political system, the idea of party competition was something unforeseen and not properly anticipated, causing major difficulties in the early days of the Republic. In its simplest terms, political parties recruit, nominate and campaign for candidates to occupy the offices of government. 


If the Constitution establishes the separation of powers and the structure of the government itself, then political parties compete to place their members within this structure. In another sense, political parties, have always provided patronage to its supporters as well. Patronage is the practice of providing jobs or other means of assistance in return for the loyalty (votes) of your supporters. The modern political system is really incomplete without discussing the emergence of the the party system which eventually settled into the two-party dominant system we are familiar with today. We will discuss its emergence in the context of rapid industrialization and urbanization in the first decade of the new republic and the conflict between Hamilton and Jefferson (leaders of two opposing parties). 

Washington's inauguration can be seen to be highly symbolic (and relevant for the present) considering that his inauguration was in New York City, on Wall Street. New York was originally the capital of the country, although only from 1789-1790. Hamilton who represented big New York bankers became Washington's Secretary of Treasury, and very little has changed in the relationship between the government and Wall St. bankers since then. 



In Hamilton's writing, you see very clearly the intersection between politics and economics, and he understood (though by no means the only one) that  law and politics are fundamentally about shaping, controlling, or influencing economic forces.


Alexander Hamilton
Hamilton was a member of the Cabinet. The President's Cabinet was a combination of advisors, but also department heads who would run the agencies considered necessary to running the government and carrying out the laws passed by Congress. Originally there were five, each headed by a "Secretary" (similar to a Minister in other countries): State (deals with foreign countries); Treasury; War (now called the Defense Department after WWII); the Attorney General is not referred to as Secretary but is the head of the Justice Department which prosecutes criminals under federal law, heads up agencies like the FBI and the DEA, defends the U.S. in lawsuits, and enforces the law. Finally, the Post-Master General of the Post Office who has since been "demoted" and is still a government agent but no longer "Cabinet-level" which is considered the highest level. Today there are 15 Cabinet departments, other Cabinet-level offices like the Chief of Staff, and various other agencies below that.
http://www.whitehouse.gov/administration/cabinet

The federal judiciary (of which Hamilton was a prime architect) set up under the Constitution also went into effect, along with the Judiciary Act of 1789 which further specified the structure and duties of federal courts. One of the busiest was the United States District Court for the Southern District of New York. The 94 federal district courts are the lowest level of the federal judiciary. Above them, presently, there are 13 U.S. Courts of Appeal, in most cases these are the highest federal judicial authority most people will deal with if they have to. Higher than this is the U.S. Supreme Court but it limits the amount of cases it hears every year to about 100. 


The primary concern of the Southern District today includes Manhattan and the Bronx and handling cases under "admiralty law" or cases involving trade or shipping disputes with foreign countries or interstate trade from other states. This is a highly sought after position and has been used a springboard for even higher offices, for example before he became Mayor of New York City in 1993, Rudolph Giuliani was the State's Attorney (or federal prosecutor) for the Southern District of New York. This is distinct from the Government of New York State and the City of New York as you completed in your assignments, and you can see now how the different layers of government: federal, state, and municipal all overlap with each other depending on authority and function.
Southern District of New York

Legal matters involving trade with a foreign country come under the jurisdiction of federal law. Since the port of New York was the busiest port in the country, most cases involving disputes over shipping and international trade would occupy most of the court's activity.


New York was already the most populous city in the country. The first census was conducted in 1790 and has been done every 10 years since. According to the first census the population of New York City was only about 33,000. Philadelphia was second, followed by Boston, and then Charleston, South Carolina, and Baltimore, Maryland in that order. According to the first census in 1790, the total population of the U.S. was just under 4 million at that time (today the population is over 310 million, the 3rd largest in the world).





Wall St., New York, The building pictured was the temporary headquarters of the new government
The remodeled City Hall, now Federal Hall
In the early 1700s and even into the early revolutionary period, Philadelphia was considered the largest city. Both New York and Philadelphia had a superior geographical location, a deeper harbor, and a better river system than Boston. Both cities were also considered more open and tolerant than Boston, and so many people moved there and the population grew. New York simply had more of these qualities than Philadelphia and that is why it became the bigger city: it's harbor was a little bit better, it was closer to the ocean, and culturally it was even more open and tolerant than Philadelphia (the city of "Brotherly Love"). 

In the early 1800s the construction of the Eerie Canal linked the economy of New York with the entire Great Lakes Region of the country, and linked completely through waterways. By 1860, New York's population was 250,000 more than Philadelphia's total population. The harbor of New York is considered one of the most "perfect" natural harbors in the world, ironically, the port is now virtually inactive due to years of corruption and mafia penetration of labor unions has raised the cost of doing business so much, that many containers are now unloaded once again in Philadelphia or Baltimore or mainly in "Port Newark" and the Elizabeth Marine Terminal in New Jersey, which is now the busiest port in the country. However, Philadelphia's symbolic stature in the country's history is also secured, because it was where the Continental Congress met to sign the Declaration of Independence, and where the Constitutional Convention met to sign the Constitution.
Independence Hall, Philadelphia, Pennsylvania





Second St., Philadelphia
At the time the largest "shopping district" in the U.S.
One of the first major conflicts in the new government was over the creation of a National Bank. Hamilton's strategy was actually part of a larger approach to managing the finances and credit of the nation. Article VI of the Constitution says that the new government is responsible for all debts incurred under the Articles of Confederation (1783-1789). Now, Hamilton wanted to explicitly commit government revenues in the form of new taxes to pay off bondholders who had purchased government bonds. Bonds are debt, so when you buy government bonds or any bonds you are "buying debt," literally you give money by paying for the bond that they promise will pay you back later, when the bond "appreciates." The problem was that in the meantime, financial speculators had purchased large blocks of these bonds from individuals who had purchased them, in many cases to provide support for the revolution, but had become almost worthless in the meantime. Controversially, Hamilton proposed and succeeded in getting the current holders of the bonds the full payoff, vastly enriching a small group of financial speculators. This then gave financial interests in New York a huge advantage over almost any other classes in society, the momentum of which has carried all the way into the present. 

In addition, Hamilton wanted to absorb all the debts of the individual states which would increase the overall debt and lead to more taxes as well. This also angered states which had already paid off their debts and would now have to pay for other states. Taking on all this debt actually established the credit of the U.S. which might sound contradictory. The most important aspect of credit is credibility, in other words, can you be counted on to make regular payments on your debt? That is usually more important then even the amount of debt you owe. On the contrary, most financial institutions are more than happy to lend you more money, assuming they feel confident you will pay them back–that is essentially what credit is. If they do not feel confident they will not loan however, and your credit score is supposed to be a measurement of their confidence in your ability to pay things back. Countries also have credit scores although they use a different scale. In any case, most of the principles are fairly similar even at larger levels although obviously much more complicated. Hamilton's plan was successful and the U.S. began with perfect credit. To this day, the U.S. is still considered the safest market to invest in (meaning putting money into banks to loan out or buying more government bonds) even despite its unprecedented high levels of debt. Again, as long as its credit is maintained there is almost no danger investors or bondholders would ever demand full repayment of their debt all at once. 

This contradicts the argument's of conservatives who sometimes like to place the government debt or deficit as an issue of highest priority (except when they are starting wars in Iraq and Afghanistan while cutting taxes at the same time). Less commonly known, but equally important is being the most powerful country other foreign countries would not be able to collect their debts anyway if they insisted, so the ability to exert financial pressure over the U.S. is limited. That is not very moral or ethical but that is the reality (it would ruin the credit of the U.S. too). 

The final measure, as I already said, was the establishment of a National Bank. State banks of course had already existed, but at the time there was not a centralized financial institution that was large or powerful enough to regulate the finances of the entire nation. The advantages of the bank is that it would have more money on hand and be able to loan out bigger sums and thus finance bigger projects, but this would also lead to more economic concentration in fewer hands. Furthermore, the "constitutionality" of the bank was also questioned as there was no explicit clause establishing a national bank. Hamilton's response was that under the "Necessary and Proper" Clause in Article I, that it implies the power to create a bank.  The matter was resolved through a compromise: the bank was approved by Congress and in exchange the capital of the country was moved from New York, to a new "Federal City" which had yet to be built, but would become the District of Columbia, or Washington D.C., located not coincidentally, nearer to Virginia (the base of anti-federalist opposition). George Washington was never in the White House which was not completed until 1800 (Washington died in 1799). This also started a tradition of separating the political capital of individual states from its most economically developed city. Very few state capitals are the largest cities in their state (Boston is the only  exception I believe and that is because its so old it predates this tradition). Albany, for example, became the capital of New York in 1797. However, it took about 10 years to build the new federal capital, for ten years, Philadelphia became the "temporary" capital of the country, although even this decision many believed was the result of corrupt political bargaining. 
 Senator Robert Morris of Pennsylvania, holding a money bag
drags the capital to Philadelphia
In early 1791, as a result of the conflicts over the bank, the anti-federalist opposition began to be mobilized again. Now, people like Madison who were so influential in making the Constitution and was one of the principal authors of the The Federalist, had now switched sides. On top of this, Thomas Jefferson was now back in the country and served on Washington's first Cabinet as Secretary of State. Jefferson and Madison now began to organize opposition to the Federalists and in the process they created the modern political system which we now have in the form of the party system. 

The Federalist "Party" was not a true party or at least not until Jefferson had already organized. The Federalist relied more on personal connections and relationships and was thus informal. They were a loose association of like minded elites made up of large merchants and bankers in the cities of the North, and commercial farmers and large plantation owners in the South. Besides their support for measures like the National Bank and government tariffs to protect their industry they were also pro-British. This may seem strange to us having just talked about the revolution, although in real life terms seven or eight years is a fairly long time. However, economic reasons were of course the main attachment. Simply, many of the goods shipped out of Northern ports ended up in Great Britain, so they depended on the British for trade. 

At the same time, they were more opposed to the French who were at this time going through the French Revolution. The conservative federalists were alarmed by the revolutionary rhetoric and sought to insulate themselves from the French, even though the French had supported the American revolution (the costs of which actually contributed to the breakdown of their government, ironically). Both the British and French had started a policy of harassing American ships or imprisoning American sailors. This would continue for decades, and lead to an "undeclared" naval war with France in the late 1790s, and an official war with Great Britain (as of 1801 the United Kingdom of Great Britain and Ireland) the War of 1812. Jefferson, who was former Ambassador to France and was in France during the early days of their revolution was perceived as being too "pro-French." It did not help matters that the French government sent officials like Edmond Gênet, "Citzen Gênet," to stir up support for the French revolution and establish "revolution clubs." 


In 1791, the Haitian Revolution (1791-1804) began against French colonial rule, and ironically inspired by the revolutionary ideas of the French Revolution. This was used by Federalists as an example of the "contamination" spread by the French and did not "recognize" the new government in Haiti until the 1820s, despite being the only other successful colonial revolution in the Americas besides the American Revolution before the 19th century, and the first and only successful slave revolution in the Western Hemisphere.

The election of 1792, was the second presidential election (and the only one to occur three years after the first one in 1789). Washington was again elected unanimously. However, the Vice-President John Adams was re-elected but not unanimously, and this began to show the first cracks in the Federalist armor. Conflicts between the Federalists, and the newly formed Republican party–made up of the remnants of the anti-federalist opposition, the new immigrant populations mainly Germans and Irish at this time, and Western farmers–were extremely heated. There is even allegedly an American political cartoon showing George Washington being sent to the guillotine, the infamous execution device used in the French Revolution! No known copies of this exist and it was most likely destroyed. Washington also had to suppress what became known as the "Whiskey Rebellion" in 1794, after Western farmers rebelled against the extra taxes levied against them for producing whiskey. This was interpreted as Hamilton and Washington putting the tax burden on the poor while also stimulating the rum trade which was based on trade with the West Indies and Great Britain and went through Northern port cities.
"Triumph Government," circa 1793
President Washington heads off an invasion of French"cannibals" Jefferson tries to stop the wheels while a dog lifts its leg on a Republican newspaper

"A Peep into the Antifederal Club," circa 1793
Shows the Republicans as "crazy anarchists" and "devil worshippers"
Jefferson is standing in the center with his arms open


George Washington did not decide to seek a third term in office, although this may have been due to health reasons. In 1796, the third presidential election was held. This time the former Vice-President John Adams was elected in a very close election against Thomas Jefferson. Since Jefferson came in second, according to the original rules of the Constitution this made Jefferson, the new Vice-President. So for the first and only time in U.S. history you had a president and vice-president from two different parties, who had just fought an extremely bitter and volatile election–who continue to do so even after taking office.

 This conflict probably reached its climax in the late 1790s with passage of laws like the Alien and Sedition Acts. The Alien Act was the first attempt to limit immigration to this country. While not over-stressing the point, I think I have tried to demonstrate at certain points the political conflicts and the ideologies used in these conflicts back then, are not all that different than what you see today, including the bitterness and the hostility. Not surprisingly, there was anti-immigrant feelings back then too, and federalist economic policies did not really benefit immigrants either. Politically then it should be not surprising they would limit immigration if they believed most immigrants would not support them. The Sedition Act perhaps even more controversially made it illegal to say anything "false" about the government or its agents; in reality of course this was used to censor the opposition.

This is the main issue in Madison's report to the Virginia General Assembly in 1800, who is speaking for Jefferson. Although dense and difficult to read, in this document is arguably the origins of the later Confederate States of America as it contains all the principles later adopted by Southerners, including the right to cancel or "nullify" laws that states decide violate the Constitution and asserts the rights of the states as being equal with the Union as a whole. In other words you can see clearly how the earlier arguments of the Federal Farmer and the Anti-Federalists are incorporated within the newly formed "Republican" Party.
"Mad Tom in a Rage," circa 1800 also shows Jefferson with the devil and a bottle of brandy trying to pull down the pillars of government
This continued until 1800, sometimes known as the "Revolution of 1800," although that may be an overstatement. After a decade of organizing and fighting, Jefferson's Republicans had created a nationwide organization at this time bound together through a network of newspapers, and "friendship societies" established in all the major cities and smaller villages too. One of the most important friendship societies was the Society of St. Tammany in New York City (later known as Tammany Hall), then run by Aaron Burr (1756-1836), a very controversial figure in U.S. history. Its support among the newly emerging working classes in the city were enough to deliver the state to Jefferson. However, Burr in this election tied Jefferson and this set off another constitutional crisis when Burr did not defer to Jefferson. Similar to the 2000 election, the winner was not chosen until February 1801, a month before the President was supposed to be inaugurated (back then it was in March, today its January). As stated in the Constitution, the House of Representatives would then vote to decide a tie. It took however, 36 attempts at voting before Jefferson was finally approved with a majority. The 12th Amendment to the Constitution was later passed in 1804 to address this problem by specifying the votes for "President" and "Vice-President," instead, of deciding based on the highest and second highest number of votes cast. Ironically, Alexander Hamilton from behind the scenes used his influence to get Jefferson elected, his old enemy. Aaron Burr became the third Vice-President of the U.S. He would later kill Hamilton in a duel in 1804 after Hamilton blocked Burr's plans to become Governor of New York.

The importance of New York for the early Republicans cannot be overstated. This established a successful formula for the Republican party as they were able to take the South plus New York in almost every election, and this combination would be enough to win both any presidential election and for a majority in Congress. The party was completely dominant from 1800 to the mid 1820s and the country was basically a one-party government at this time. After the Civil War, Southern Democrats (remember the "Republican" Party became the Democratic Party in the 1820s) were not credible to run for any national election. So, basically until the 1930s, the Governor of New York was basically the default Democratic candidate for President in almost every election (most of the time whoever he was lost).
Election of 1800
Three new states have been added:
Vermont, Kentucky and Tennessee
Notice the size of Virginia (largest state) which includes West Virginia
and Massachusetts includes Maine


Election Year
House1788179017921794179617981800180218041806
Federalist37395147576038392524
Republican28305459494665103116118
Percentage Republican43435156464363738283
Senate1788179017921794179617981800180218041806
Federalist18161621222215976
Republican8131411101017251728
Percentage Republican31454734313153747182


In the election, Jefferson's sexual relationship with his slave Sally Hemmings was reported on several times, and their were frequent references to Jefferson's "dark mistress," among the many other vicious political attacks launched by both sides during the campaign. Jefferson's relationship with Hemmings has been the subject of controversy and many writings, but I think what is sometimes not communicated is that this was not an unearthed secret that modern historians found, but in fact, people were very much aware of it in Jefferson's day (and that Jefferson "survived" the scandal it caused). Jefferson was known for his public condemnations of slavery, but equally publicized though less well-known is that Jefferson supported re-settling former slaves in the Caribbean or Africa, he did not believe that blacks and whites could co-exist together for a variety of reasons.


Many modern commentators point out how bitterly divided and partisan (as in supporter of a party) politics is today over the election of Barack Obama, as if it were something new. B
esides that most people can also remember when Bill Clinton was impeached, what is confusing about this is that politics were always, partisan, bitter, and dirty, and vicious. The images for example shown above are meant to be shocking. These are images of the same person who today are on Mt. Rushmore (a prime example of the blending of religion and politics), and the nickel. Yet he is shown cavorting with the devil in these political cartoons. 

The mythical image of Jefferson however which was only created in hindsight, as we can see, is very much intact today. It is indisputable that being the principal author of the Declaration of Independence that Jefferson comes closest to being the true author of the "creed of America" as Chesterton spoke of. As modern historian Gordon Wood has said in an interview, "when Jefferson acts ignobly, we feel as if somehow America itself has acted ignobly" (ignoble being a fairly outdated word meaning "not noble").

Jefferson's contradictions and ambiguities do not end there. He is a perfect example of the complicated mixture of religious and scientific ideas that I have discussed previously. Jefferson uses the language of the Enlightenment which can be confusing at times but he retains the older religious tradition of fraternity and community as integral parts of the political system. Jefferson takes it upon himself to take these older religious experiences but to translate them into modern scientific language, a very difficult synthesis and arguably one he fails to make.

There is a kind of psychology underlying the Federalists and the Republicans. Federalists believe there tends to be a conflict between "interest" which is rational and "affection" which is instinctive, the problem is precisely that people let their affections for things closest to them cloud their interests or ability think in the long-term.  The "psychology" of The Federalist is to at least replace if not destroy the affection people feel for their local government with the new national government. The way to do this was to make the government effective or "energetic" as Hamilton would say, and once it satisfied people's needs or interests their affection would turn to it. 

Jefferson you must remember is not an opponent of the Constitution and wants the people to love their government, but believes this can only be done by building on levels of trust and affection from the local and up. He does not doubt that affections can be misplaced, but that affection for the local community is not "evil" in itself. The political party was intended to serve this purpose as an intermediate body in between the government and individual, local and state governments would have the same purpose. Jefferson did believe however that the Constitution should be updated every ten years or so and is remarked to have said it would be a good thing if there was a revolution every ten years or so! This attitude however does not complement itself well with the Federalist attitude towards the Constitution.

Thomas Jefferson
In his Inaugural Address from 1801, many of these themes can be seen. The Inaugural Address is an important tradition in U.S. politics as it provides the President an opportunity to address the other branches of government and basically explain what they plan on doing. Again, like in many other political speeches you see Jefferson appealing to the common bonds that bring us together, "we are all Republicans–we are all Federalists," sounds almost identical to then State Senator Obama saying the same thing about Democrats and Republicans in 2004 and repeated many times after. He urges us to return to the harmony and affection without which no political order is possible. Contrast this with the Federalists who rely upon economic interest as the primary bond. 

Jefferson, like most liberals, also believed that humans were endowed with a "moral instinct" or "moral sense" a term created by the Scotch-Irish philosopher Francis Hutcheson (1694-1746). In order to preserve order and prosperity, government must develop this sense among the people. His concern was that like other senses, they can be dulled or degenerate over time, he even supposed that people could perhaps be born without a moral sense, similar to how some people are born without a sense of hearing or sight.

Chesterton referred to "Jeffersonian democracy", specifically that the "melting pot was traced on the outlines of Jeffersonian democracy," and many other political commentators would agree that the system we have now did not fully develop until the administration of Jefferson establishes both a party system for choosing candidates for election, as well as increasing the level of democratic participation from the populace. Most of the property restrictions were removed to voting at this time (although gender and racial barriers remained). 

Large segments of the population were excluded from participating in the political system. So, in the second part of the class we will now look at how this system has evolved in terms of the struggles and movements by excluded groups to gain access to the political system. I also know that many of the readings up until now have been fairly difficult to read. I think this is due more from the language used then the complexity of the ideas. They are important to read though for historical purposes; because they are good examples of political ideology; and because they parallel in some ways modern politics, and I think it is worthwhile for the students to see that for themselves, maybe, to get a certain perspective on things in the present. In my opinion at least, the next  readings are probably the best to read. I think as we get closer to the present time the readings get easier to read too.

Next class is the midterm. The midterm will be posted on Blackboard, and will consist of five short answer questions worth twenty points each. Partial credit can be given for answers but they should demonstrate knowledge of the material and clear writing. Short answer means a paragraph or a few short paragraphs, and does not need to be a long response but again should be a well-thought out, concise and clear response. There is no time limit for the midterm but it should be completed by the end of the day (before midnight).





Friday, October 6, 2017

10/6 Another Stab at the Constitution

http://www.nytimes.com/roomfordebate/2012/07/08/another-stab-at-the-us-constitution








The piece we are looking at is a modern commentary and analysis of the Constitution, taken from The New York Times.

Currently, the Constitution has 27 amendments, the first ten making the Bill of Rights. The 1960s and 70s was the last period of time there was any significant action to amend the Constitution. Technically, the last amendment to be ratified was in 1992, due to a loophole in the amendment process. http://constitutioncenter.org/interactive-constitution/amendments/amendment-xxvii  

Article V gives the process of amending the Constitution. There are two methods for an amendment to be ratified (something Michael Rappaport focuses on in his commentary). The first, conventional method, is for at least 2/3 of both the House (290) and Senate (67) to vote on and propose an amendment. The amendment is then turned over to state legislatures to vote, now requiring 3/4 of the states (38) to ratify. Only then will the proposed amendment become an actual amendment to the Constitution. 

The other, so far unused, method, takes the initiative from Congress, and gives it to the states, in this case, for 2/3 of the states legislatures to call for  a special convention that would then propose an amendment, however at this point the convention would be independent even from state legislatures. The proposed amendment would then be referred to Congress who can either propose turning it over to state legislatures, or specially made state conventions in each state who must also pass the amendment by the 3/4 threshold. So, both ways entail a two-step process: the proposal stage that requires a 2/3 majority, and the ratification stage that requires 3/4. So far, the only method used is for Congress to propose an amendment, then ratified by state legislatures. Some legal scholars, like Akhil Reed Amar, believe there are other means for amending the Constitution besides what is explicitly mentioned in Article V, but for now we will concern ourselves with proposals in the article.

The first commentary by Jamal Greene, questions whether to create term limits for federal judges, as he says: 
In a democracy, no one person should wield so much power for so long. Article III of the Constitution provides that federal judges “shall hold their offices during good behaviour.” [sic] In practice this language means they serve for life absent voluntary retirement or impeachment. Were we to draft the Constitution today, we would be wise to reconsider this provision.

His reasoning for this seems to rest on two main points: one, he argues in some cases judges simply become too old to effectively render judgements in cases, something which requires a person to be at the peak of their mental faculties. Two, he argues that life-term appointments makes the selection process of judges too political. Federal judges are nominated by the President, but approved by the U.S. Senate. Over the last 20-25 years this process has become incredibly complicated due to the inability of opposed political parties to come to agreement (you might remember the Gallup piece from a few weeks ago which pointed to polling data which supports this). Republicans have recently pledged to block any consideration of a Supreme Court nominee for the Obama administration. In this case, Rep. leaders seem to have manufactured a rule saying that a President cannot appoint a Supreme Court judge in his last year in office (even though eleven judges have already been confirmed under those circumstances).


Greene argues that the example of other countries that have term limits or mandatory retirement ages might be a good example, and seems drawn to the idea of an 18-year term. 18 years is by mosts standards a long term in office, but many would still be opposed to limiting the terms of judges. With the recent death of Antonin Scalia, the question of term limits for judges has again been talked about, but, again, to alter this would require a constitutional amendment, since judges are allowed to serve "during good behavior."


The second piece by Rachel Barkow, looks at the eight amendment of the Constitution and how it might relate to the current problem of imprisonment in the U.S. Despite the repeated claims to being the "land of the free," the U.S. leads the rest of the developed world in the number of people in prison, which as she points out is made up of significantly larger portions of minority groups in the country. Certainly, running prisons has become a profitable industry as of late, led by corporations like the Corrections Corporation of America (CCA) which also lobbies the government for longer prison terms and less leniency, not because it feels threatened by criminals, but because shorter prison terms would mean less business. Interest groups like this also contribute significantly to lobbying to preserve and intensify the war on drugs, since 50% of prisoners are in there for drug-related crimes. 



Barkow looks to the Eighth Amendment to the Constitution, or what we refer to as the Bill of Rights (the first ten amendments) which bans the use of "cruel and unusual punishment." She argues that the prohibition against cruel and unusual punishment should prohibit excessively long prison sentences as well:

As I have suggested elsewhere, clarifying and expanding the Eighth Amendment could help. It should specifically state that excessive terms of incarceration are prohibited, just as it bans excessive fines. It should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge. And it should insist that legislatures create a record showing that they considered empirical evidence about the law's likely impact. 
It is important to see that before any action can be undertaken, there must be some groundwork for this action in the Constitution. In this case she argues that the Eighth Amendment lays the groundwork that would make the movement towards shorter prison terms a legitimate, and legal course of action.

The third piece by Akhil Reed Amar, looks at the limitations on naturalized citizens for holding office, specifically the President. The Constitution states that only citizens born in the U.S. are eligible to be President of the U.S., as he says:
But those American citizens who happen to have been born abroad to non-American parents — and who later choose to become “naturalized” American citizens — are not the full legal equals of those of us born in the U.S. True, naturalized Americans have always been allowed to serve as cabinet secretaries, Supreme Court justices, senators and governors. And at the founding, anyone already a citizen could be president, regardless of birthplace. (Alexander Hamilton, for example, though born in the West Indies, was fully eligible to serve as president under the Constitution he himself helped draft.) But modern-day naturalized citizens are barred from the presidency simply because they were born in the wrong place to the wrong parents.
We can look back to the readings from Bourne and Chesterton and relate their views on transnationalism or as Chesterton called it the "the nationalization of the internationalized" to this restriction. Do you think Bourne and Chesterton would be in favor of lifting this restriction? Do you think it is fair to continue this restriction, or should any citizen regardless of birth be eligible to one-day become President of the U.S.? On a related note, the bizarre obsession still many have with the current President's birthplace relates to this, if the President were born in Kenya, as many on the political right-wing suggest, then he would be ineligible to be President.

The fourth piece by Elizabeth Price Foley argues for the importance of federalism. Federalism is a doctrine which explicitly divides the power of government between the center (or federal) government and regional states which retain some independence and autonomy from the center. Some other countries have what is called a unitary government where the top-level of government appoints all the lower levels as well, thus power and control is in the hands of the top government officials. In our country, the governor of New York for example has certain freedoms to act that the President and Congress cannot limit. In practice, however, especially in recent times the extent and influence of the federal government has increased, mainly as a result of the influence the federal government has in directing funds for the states in multiple areas like education or even to maintain roads.

Foley argues that this expansion of government power threatens the idea of federalism which the Constitution is based on:
Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.

As the last line indicates however, this view has increasingly become seen as more of a conservative or right-wing opinion. She goes on to point out how the Supreme Court had recently ruled against certain aspects of the health care law that would force state governments to act. Again, think back to the Gallup poll, which showed that when the opposing party is in power, people on the other side favor greater restrictions on government power. If a Republican government was in office today, would conservatives still argue for federalism as strongly as they are now?

The fifth piece by Alexander Keyssar argues to abolish the electoral college. We know the President is not elected through a direct popular vote, but is chosen by electors equal to each states representation in Congress, meaning that elections are decided on a state by state basis. This is one of the more well known and controversial aspects of the Constitution today. As he says:
Moreover, we have learned a lot in the last 225 years about shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril. As a nation, we have come to embrace “one person, one vote” as a fundamental democratic principle, yet the allocation of electoral votes to the states violates that principle. It is hardly an accident that no other country in the world has imitated our Electoral College. 

The sixth piece by Michael Rappaport looks at the process by which the Constitution is changed. Paradoxically he argues that the process of changing the Constitution has come to a point where it is virtually impossible to change. There are two methods for changing the Constitution. The first requires that 2/3 of both houses of Congress agree to an amendment which is then sent to the states to ratify, or approve of the proposed amendment. There is a second method but is has never been used as he says:
The second method is for two-thirds of the state legislatures to call for a constitutional convention that would then propose an amendment (which, again, would have to be ratified by the states). This second method has never been used, because the state legislatures fear a runaway convention. They are concerned that if they call a convention to draft a balanced budget amendment, the convention will end up proposing an amendment on same-sex marriage or school prayer. 
This argument matches up well with Foley's federalist argument since it reserves a more active role for the states, again quoting his argument:
The Constitution should be changed to eliminate the possibility of a runaway convention. The best way to do this is to dispense with a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.
The seventh piece by Melynda Price deals with another highly publicized and controversial aspect of the Constitution, the "right to bear arms" in the second amendment. Price who is in favor of abolishing this right argues:
I am not naïve enough to believe that doing away with the Second Amendment would do away with gun violence, but I know firsthand the impact of guns and gun shots on children. This nation was constructed and reconstructed in the aftermath of violent and bloody conflicts. Still, the Framers believed that not only the Constitution, but also the peaceful way the document was created, would penetrate the Americans' minds and change they engaged. The Constitution would be the only weapon needed unless there was an external enemy. 
The eight piece by Jenny Martinez deals with the interpretation of the Constitution in a more international setting, that being how important are treaties signed with other countries in the legal process of this country. Martinez points to what is called the "supremacy clause" in the Constitution,  “Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

However she addresses the often conflicting tendency of courts to ignore treaties that have been signed with other countries, as she points out:
But the Supreme Court has interpreted the supremacy clause in ways that contradict its text and original purpose; the court has suggested that the clause doesn’t mean what it says as far as treaties are concerned. One of the strangest of these decisions came a few years ago in a case involving Texas’s failure to notify Mexican citizens facing the death penalty that they were entitled by a treaty to speak to their consulate. In that case, Medellín v. Texas, the Supreme Court held that the treaty (and a decision of the International Court of Justice interpreting it) weren’t actually enforceable against Texas.
The ninth piece is by Randy Barnett and concerns the Commerce clause of the the Constitution. This gives Congress the power to regulate business in the country. Barnett argues that this power also has grown too much and exceeds what it is meant for. He argues the clause should be reworded as:
"The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States."
Compared with its original text in the Constitution which is much shorter (Article 1 Section 8 Clause 3): "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Is this more complex version necessary? Barnett argues that this is more in line with the original intention, but he does not make an argument for why the original intention is better. In other words why is it better to return to the original meaning of the commerce clause, given that the environment is much more complex now and boundaries between states much less important?

The final piece by Pauline Maier looks at the most well known part of the Constitution, the first amendment to the Bill of Rights. However she argues that the wording of the text is flawed and argues it should be expanded on:


“Congress shall make no law” is a peculiarly stingy way to begin an amendment that protects the rights of conscience, speech, press, assembly and petition. James Madison proposed more capacious language for those rights. He would have said, for example, that “the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” He would also have stated that “the people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
She argues that this would clearly separate the protections giving to people and to corporations which also appeal to first amendment rights to justify lobbying the government.

These authors represent different political perspectives and isolate different problematic areas of the Constitutions which continue to be debated in the present. Some call for new interpretations of how we understand our rights, others for re-wording or altering certain parts of the text, others still call for getting rid of what they see as outdated features of the Constitution.

People often say that the Constitution is a "living document" meaning that it changes and adapts itself to fit the needs of the era. These writers and others suggest several ways in which the Constitution can be adapted.