Thursday, June 7, 2018

The Constitution and the Federalist (Part 1)

"Scene at the Signing of the Constitution," Howard Chandler Christy, 1940, U.S. Capitol, Washington D.C.

The Articles of Confederation established the first system of government, first ratified in 1777 and again in 1781. The period between 1783-1789 the government was organized according to the Articles of Confederation. Notably, this system of government had no president, there was a Congress of the Confederation but there was only one branch or house, instead of two, and there was no supreme court. The 13 states which were really more like separate countries at this point and had very broad powers, maintained their own state militias, and in many cases even printed their own money and came up with their own rules on trade. The general consensus on this period of time was that the government was weak and ineffective and as a result of this conflict and disorder was increasing within the states and even between the states.

In 1786, the Annapolis Convention met in Maryland. The major result of this convention was an agreement to set another Convention in Philadelphia with purposes of "amending" the Articles of Confederation. The result was between 1787-88 the Constitutional Convention met and produced an entirely new document and with that an entirely new system of government. This is the Constitution that most people are familiar with.

The Constitution is a rather short document consisting of seven articles that broadly lay out the powers and responsibilities of the government and its operation. You may have noticed The Declaration of Independence was not very long either. When we look at the speeches of Abraham Lincoln who delivered two of the greatest if not the greatest speeches in American history, they are also very short. When your aim is to persuade people often times keeping things short works much better than writing long volumes of text. 
Public meetings and gathering-places were thus an integral part of the political process and a means by which "ideology" or a set of political beliefs and attitudes, becomes meaningful for individuals. 

There were many debates within the Convention (the official records of which are still sealed). Many of the conflicts revolved around sharing power between the large states and the smaller states; questions of national debt and state debt incurred during the war; and of course slavery.

The first three articles set up the basic separation of power between the Legislative, Executive, and Judicial branches of the federal government. Many of the Enlightenment thinkers like Locke or the French thinker Montesquieu (1689-1755) adopted similar frameworks for the division of power and it has become accepted as standard in virtually every government in the world. 

Originally, the legislative branch (the law-making part of government) was supposed to be superior. This was meant to place a check on the power of the "king" and also to protect the "private property" of individuals. The executive branch which is charged with physically carrying out the laws is thus dependent on the legislature for funding (it must get its permission more or less) and the power to raise taxes rests with the legislature as well. 

The Legislative branch is entrusted with making all laws for the country and is composed of two branches: the House of Representatives and the Senate. Representatives are drawn based upon the population of the state. Larger states with larger populations have more representatives. Also if the population of the state increases past a certain point it will gain more representatives (or lose them if the population decreases). Representatives are drawn from different districts drawn up by the states who also control the laws for voting in their respective states. All bills for raising revenue are supposed to originate with the House since it is the more democratic branch of government. Because of its size the position of a Speaker for the House is created as well. The Senate is composed of two senators from each state regardless of size. This was intended as a compromise to give smaller states more equality in government. Senators were originally chosen by the state legislature, and not by the people directly, that lasted until the Progressive era in 1913.

In order for proposed legislation to become law it must pass through both houses of Congress and be approved by the president. The president can veto laws, but the Congress can override the veto if it gets a 2/3 majority in both houses. 

This is probably the most well-known example of the second major principle guiding the Constitution, the system of checks and balances. Similar to the separation of powers, this principle stipulates that the different branches of government have to be in agreement on major decisions and that each branch has the power to limit the power of the other branch. The idea of separation of powers would be pretty much meaningless if it did not include this as well. These two principles were designed above all else to prevent tyranny, even at the expense of effective government, or what Hamilton would call "energetic government." 

This is controversial, because although preventing some (not all) abuses of government authority, it makes it difficult to use the government for more constructive purposes, leading to what is called "gridlock." This is a common topic in the present because of the noted Republican opposition to the Obama administration. In this case, Republicans control the House of Representatives while the Senate is nominally a Democratic majority, so even controlling one part of the Congress is enough to effectively stall any programs or policies favored by the current administration. However, this is complicated because in the Senate at the present the rules have effectively changed to now require a 2/3 majority to pass legislation through instead of a "simple" majority (n > 50%). This is as a result of what is called the "filibuster" and its notable because it is NOT in the Constitution.

The first article is the longest, again an indication that the legislative branch is supposed to be the most important and lays out several other responsibilities of the government over things like immigration and trade. 

 For example, the Commerce Clause in Section 8: "To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes." This short passage actually provides the legal justification for Congress to pass laws regulating things like healthcare or even drugs which are made "illegal" by an act of Congress. 

There is also the Necessary and Proper Clause: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This clause is controversial because it gives power to Congress to pass laws "necessary" to accomplish its goals. This of course sparks controversy over how the Constitution is interpreted. 

Some favor what they call a strict interpretation of the Constitution meaning the government has no right to pass any laws or act in any way not explicitly mentioned in the Constitution. This interpretation is mostly used by conservatives to limit the government's ability to regulate business or provide "privileges" to minority groups. Others favor a more broad interpretation of the Constitution and use this clause as a legal justification.

The second article deals with the executive branch of government headed by the President of the United States. This article explains the controversial electoral college, an institution that was set up to prevent presidential elections from being decided directly by the people. Instead votes are allocated based upon a number of "electoral votes" possessed by the individual states not by the people of the states. So when we count the results of the election we count the states the president won, not the people who voted for the president. This system tends to benefit the less popular candidate: some elections that were very close in terms of popular vote seemed like huge victories in terms of electoral votes, some have even lost the popular vote and still won in the electoral college like George Bush in 2000 (even counting Florida, Bush still lost the popular vote, however the results of that election are too distorted to use this as a good example of "winning" the electoral college while losing the popular vote). 

The major flaw in the electoral college is the idea of "wasted votes." Consider a state like New York. Since New York traditionally votes for the Democratic candidate in Presidential elections (it did go for Reagan though twice in the 1980s) only one vote more than the Republican candidate or third party candidate receives is necessary to win the election. To use simple numbers if a Republican gets 1,000 votes in NY, the Democratic candidate only needs 1,001 votes to receive the electoral votes for the whole state. If it turns out 5,000 people voted for that candidate, then most of those votes will be wasted, in the sense that they will not add anything to the chances of the candidate winning the election. Now consider the real life population demographics and the fact that the population of New York overwhelmingly outweighs the populations of so many other states with a few exceptions and it is easy to see why many would criticize this system since the citizens of New York would be under-represented compared to smaller states that would have a disproportionately larger influence in determining elections relative to their population size.

In terms of "electoral systems," or a way of selecting candidates for election, this is known as single-member district (SMD), and all elections in the U.S. are decided this way including for Congress and local government as well. An alternative method is known as proportional representation, where the proportion of votes captured by a political party equates into the proportion of representatives they have in the legislature or Congress. In this system votes are not wasted, to go back to our example, all of the votes cast in New York will then go towards the overall proportion of votes received by a party which would increase the proportion of their party representatives in Congress. However in this system there is less of a personal relationship between members of the legislature and their voters or constituents. The SMD system, since it focuses on a specific person in a specific district tends to establish more of a personal relationship between the candidate and potential voters.

The impeachment process is also explained in Article II as it is in Article I. A president can be impeached or removed from office but it has to follow a precise procedure. The House must formally lay charges against the president, the Senate then becomes like a court where the president is tried. The House brings the charges and acts as prosecutor, but the Senate votes on it and acts as jury. 

There have only been two impeachments in U.S. history against Andrew Johnson after the Civil War for supposedly sabotaging Reconstruction in the South, and Bill Clinton in 1998. However the Senate voted against impeachment and they were not removed from office. 

The primary responsibility of the president is dealing with foreign affairs, and in this area the president has more room to act without the approval of Congress. Notably, the power to "declare war" on another country rests with Congress, yet this is another aspect we do not follow anymore, there has not been a "declared" war since World War II. 

An unwritten role of the President is to be the leader of the civil religion, much in the same way as religions often have a "supreme leader."

The third article deals with the Supreme Court and the Judicial branch which is charged with interpreting the laws of the country in reference to the Constitution. Although not provided in the Constitution this evolved into the power of "judicial review" which gives the court power not only to interpret laws in reference to the Constitution in specific cases, but to strike down or cancel laws which conflict with it. 

The article also separates "original jurisdiction" from "appellate jurisdiction." Original jurisdiction refers to cases that would go directly to the Supreme Court. They are fairly few mostly affecting cases involving foreign officials, federal officials, or if the U.S. itself is a party in a case including treason. Most of the time, and most of the famous cases that have come before the court, the court was acting in terms of its appellate jurisdiction or appeal. People appeal to the Supreme Court after they have gone through lower courts, although the Supreme Court can choose not to hear a case. Most crimes are under the jurisdiction of the state court, including the most serious crime murder. If you kill someone you will most likely be tried by the state not the federal government, unless you kill a federal official. However the Supreme Court does have the power to override the decisions of lower courts.

The remaining articles deal with the relationship between the federal government and the states, the process of adding amendments to the Constitution, and the process of ratifying or approving the Constitution. Following that is a list of the Bill of Rights and the other amendments to the Constitution. We will talk about the Bill of Rights more next class. Article IV deals with some of the rights of the states and their relation to the government. The U.S. government is set up as a federal system, this means there is a division of power between the U.S. government, the state governments, as well as local municipal government. These different levels of government also follow the Legislative, Executive, and Judicial division of power. The American political system is very complex because of this. Many states like France, the United Kingdom, and Japan have unitary states meaning there is one government authority and all local officials are usually appointed by higher officials. Germany has a federal system, although it is only made up of 16 states instead of the 50 states now in the U.S. (originally 13 of course). India is also a federal system made up of 28 states and 7 "union territories" directly administered by the federal government. Russia is a federal state made up of 83 different units. A federal system is most common in countries where there is either a lot of ethnic division like in Russia or India or smaller autonomous states are now part of the unified federal state like in the case of the U.S. or Germany.

There is a controversial passage in Article IV that protects slavery: "No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law of Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." There is also a clause in Article 1 Section 2 that refers to counting slaves as 3/5 of a person for determining representatives and taxes. 

There was controversy over this when in 2011 the new Republican majority House of Representatives began their session by reading out the Constitution, however they omitted these controversial passages. How would you interpret something like that? What is the meaning of reading out the Constitution word-for-word except to symbolically show that they are adhering to the "true principles" of the Constitution and implying that the country has lost its way perhaps. Yet does it not defeat the purpose when it seems that they are not willing to confront the "bad" aspects of the American past, in effect by basically censoring aspects of American history that do not fit into the idealized vision of American history that conservatives tend to put forward? It undermines the whole idea that they are trying to return to the "true" America, when their idea of truth is so selective and sanitized, or at least they are unfamiliar with the saying, "the truth hurts." This has serious consequences considering that many believe that it was the failure to discuss slavery candidly and honestly in a system supposedly based on discussion and debate that eventually led to the breakdown of the system and the Civil War (the word "slave" or "slavery" is nowhere mentioned in the Constitution). There are those who believe the Civil War would have happened earlier if they did have this honest discussion, and there were those who were willing to have this discussion even back then but who were outside the political system, however, if anything these kinds of "oversights" today are suggestive of a failure to learn the lessons of history more than anything else. 

After the Convention had completed its work, copies of the Constitution were circulated throughout the states. People in the states elected delegates to serve on state conventions to ratify the Constitution. The first state to ratify was Delaware in late 1787, New Hampshire was the decisive ninth state to ratify in June 1788. Nine states out of thirteen provided the 2/3 majority needed to ratify the Constitution. Two states, North Carolina and Rhode Island did not ratify the Constitution till after George Washington was elected president. The system of government established officially went into effect March 4th, 1789. Washington was inaugurated as president April 30th, 1789, the only president to be unanimously elected (both terms).


  1. I’m extremely confused Professor I didn’t see an assignment that was due for today?

  2. Hi Antoinette! That is because we were in class last week, but the class is expected to complete this assignment every week. Same format every week.

    1. So then the assignment is due next week?

    2. No the assignment on Bourne and Chesterton is due today. I did mention this in class last week and in previous classes that there was an assignment every week. The assignment for the Constitution is due next week.

    3. The syllabus also reads as follows:
      "Homework assignments
      Each week you will have a homework assignment. Students are expected to create a “blog” where they will post weekly “reflection papers” which will be the student's reflecting on the topics discussed in the lecture. This is done to provide me with feedback to see how well you are understanding the material as well as to provide time for students to think about and evaluate the material we cover in class."

    4. hi clarification because i am a bit confused the reading posted under 9/26 is what we will reference to create blog which is due 10/3?

    5. Hi, yes the assignment is due a week from the day the lecture is first posted.

  3. In the third paragraph you spoke of Abraham Lincoln's speech being short compared to speeches today and I have to add that I completely agree. When I read President Lincoln's second inaugural address that is the first thing I noticed. However, I actually thought he was being blunt in order to have people realize that the war should stop. It made me feel as though Presidents of today are doing too much to appease to people for votes rather than stating the truth as he did. In another sense it is a different time compared to then. Nonetheless, I didn't think it was an important observation when I noticed but like you stated most of the historic documents and speeches were relatively short compared to the ones now.

  4. I definitely agree with you on how controversial separation of power could be;because as you mentioned the separation of power lacks the effectiveness of government. This might be the main reason why a lot of candidates during campaign, promised to change, to stop or to accomplish many thing for the nation, but when in power it seen as if they forgot. Could instead of focusing on limiting government authority, government concentrated on developing a system on how to use " government power" as a whole? Though, perhaps this is impossible because of the hugely difference we all have as human. If the system of separation of power is remove couldn't we get into a dictator government as had Adolf Hitler, Rafael Trujillo within others.

    1. That's a great point! The system is set up so that if Congress and the President are aligned, a lot can be done, but if not, then almost nothing can be done. So, ultimately whoever is in the White House will have to deal with Congress. Without the checks and balances, like you said, how can you prevent a dictator from taking power?

    2. That's a great point! The system is set up so that if Congress and the President are aligned, a lot can be done, but if not, then almost nothing can be done. So, ultimately whoever is in the White House will have to deal with Congress. Without the checks and balances, like you said, how can you prevent a dictator from taking power?

  5. I certainly see the pros and cons of our government, as Priscilla stated, once in power seems like many presidents have forgotten many of the promises the made during campaigns; but the truth is that it is actually a lot harder to make those promises a reality. This is something, I fear Bernie, will be dealing with if he was to win the elections and become president.

  6. I think you and Priscilla both bring up really good points. I think this interview by Sanders speaks to the point you are making.

  7. I posted my reflection on my blog

  8. This reading was very interesting because it reflects the independence of the thirteen colonies of the United States. Thomas Jefferson and other leaders fought for the liberty of the United States. The U.S was under the regime of the British, and these thirteen colonies became thirteen states of U.S. Also the constitution which suggest the laws and rules that these states had to follow.

  9. This reading was very interesting because it reflects the independence of the thirteen colonies of the United States. Thomas Jefferson and other leaders fought for the liberty of the United States. The U.S was under the regime of the British, and these thirteen colonies became thirteen states of U.S. Also the constitution which suggest the laws and rules that these states had to follow.

  10. I posted my reflection on my blog

  11. I posted my reflection on my blog

  12. Professor,
    No new articles since 9/15?
    Just checking,
    Rodolfo Chacin.

  13. I agree that separation of power lacks effectiveness, because if the congress and president is on different pages then nothing will get done at all. Although if there was a chance that both the president and the congress are aligned then there is progress. I like the separation of power though, since they check each other. If the President doesn’t agree with a bill while the congress approved of the bill then the bill is there by stopped. Which I like since everyone can understand what is going on and make sure everyone is on board. This also helps the fact that Presidents can’t do what they want, which stops dictatorship.
    I also like that there is an impeachment process for Presidents, also on how it is rarely used. If impeachment was easy and it was used a lot then it would lead our country in a downward spiral, since if it was so easy to do no President would get used to and have experience in being president which puts our country in a bad spot. We would also be open for terrorist attacks, since 9/11 happened when Bush was still fairly new in office.
    IN CLASS NAME: John Tirado

  14. American history gives us a perspective into the thought processes of the founding fathers and the time period. The founding fathers were fearful of the monarchy in Great Britain, and one party having too much power over another. Yet, they did not trust the people enough to have a pure democracy. It was a balancing act to create a government that will overall benefit it's citizens. However, for today's time period, I believe this type of government may not effective enough to keep up with the changing times. Something needs to change!

  15. I agree with Jessica's post. I also agree that some changes are in need. However, if you read the post and you think about the things that are happening now in today's age, I feel like the government is falling more and more into the gaining total control. Which takes me back to the article on Inverted Totalitarianism