The Constitution and the Federalist

"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 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.

The US Constitution, despite its many flaws, is an important moment in world history, as it marks the transition to a "modern" society. Sociologists like Emile Durkheim and Jürgen Habermas have argued that the evolution of law from something based on religion or divine authority, to a "rational consensus" based on argument and agreement is one of the major dividing lines between a pre-modern, or traditional, society from a modern one. Laws have of course existed for centuries and millennia going back to things like "an eye for an eye" in Hammurabi's code of law. If you look throughout history most civilizations base political authority on divine inspiration. Europeans had the doctrine of the "divine right of kings"; imperial China had the "mandate of heaven"; Islam has the "caliphate"; Japan has its Shinto religion that deifies the emperor, etc. There are still countries where the law is based on religion like Saudi Arabia and Iran. 

On the other hand, traditional authorities may have had some enlightened ideas on debt forgiveness, as the economist Michael Hudson has argued. Debt forgiveness was a regular institution in ancient societies, who realized that debt would always increase faster than economic growth, resulting in large debts. Economic concentration of power, leads to political concentration of power, as happened in the Roman republic, leading to the growth of an oligarchy, or creditor class, that leverage power through debt. Ancient rulers like Hammurabi realized this, that rich elites pose a threat to their rule, and would periodically issue debt forgiveness, this was possible since most debts were owed to the state anyway in the form of taxes, but would have the effect of rebalancing the economy by providing more resources to the poor. This has interesting parallels with today's society as well, since consumer debt is at all time highs. High levels of debt, in particular private debt, is easy to explain when you consider that wages have been stagnant since the 1970s, despite record breaking productivity growth and corporate profits:
https://michael-hudson.com/2018/08/and-forgive-them-their-debts/

Wages = hourly compensation

The US Constitution and Declaration of Independence are based, not on divine authority, but reasonable consensus, the laws exist not because they are divinely inspired, but because people agree that we should have laws, and gain legitimacy from the "consent of the governed." Even the idea of rights, which the Declaration says comes from the Creator, are based on consensus. We have rights, because we agree that we should have rights, and their existence depends on this belief. As Habermas argues, the values of liberals like Jefferson had contradictions, and were used in ways to exclude or conceal the lack of power of black people, women, and indigenous people in the US, but as he says these ideas were "more than ideology" and set in motion social forces that they could not contain or control. The Constitution is flawed, it defends slavery, but it marks an important moment in world history, and after it, most countries would move towards constitutional government, arguably creating "better" and more inclusive constitutions, with more rights. Since we can acknowledge the Constitution is a human creation, not divine, of course allows us to remake or revise the Constitution, as shown in the 27 amendments to the Constitution. Even the Soviet Union and Communist China had constitutions that were very extensive, but only a formality, and do not provide the rights inscribed within. Wolin's critique of American institutions builds on this idea: the formality of democracy exists, but the substance is missing. 

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.

Montesquieu

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. The British Parliament, which was an inspiration to the founders, 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 leads to what is called "gridlock." This was common during the Obama administration. After 2010, Republicans controlled the House of Representatives, while the Senate was Democratic until 2014, but even controlling one branch of the Congress is enough to block any  policies favored by the executive. This is even more complicated because of the Senate filibuster. Throughout most of its existence the Senate has decided most bills through a simple majority, however, since the 1970s, they have relied more on the filibuster that require 60 votes. Leaving aside that terms like filibuster and gerrymandering are notoriously unclear in their meaning, the filibuster is basically a law that allows Senators to speak for an unlimited amount of time, effectively stalling the Senate, unless you get 60 votes to end the filibuster. The practical importance of this is that the rules of the Senate have been rewritten so you need 60 votes instead of 51. This was important during the passage of "Obamacare," as Democrats had more than 51 votes but did not have 60 (after Ted Kennedy died), and were forced to abandon a "public option." This is also notable because the filibuster it is not in the Constitution. Eventually, Congressional gridlock grew so bad in the second term of the Obama administration, that the "nuclear option" was used to effectively end the filibuster, this was first done in a limited capacity by the Democrats during Obama's second term, but the practice has continued under Republicans, most notably pushing through deeply unpopular tax cuts for the wealthy. 

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 narcotics, 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, though there is reason to suggest Gore should have won Florida). Of course, the election between Clinton and Trump showed this even more, with Clinton winning 3 million more votes, but losing in electoral votes. 

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), in theory only one vote more than the Republican candidate is necessary to win the election. To use small 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 5,000 people voted, most of those votes will be wasted, since they will not add anything to winning the election. Now, consider real life population demographics, and the fact that the population of New York 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 votes of many citizens of New York are not counted, and thus under-represented compared to smaller states.

For example, in the 2016 election Hillary Clinton won the state of New York with 4.5 million votes over Trump's 2.8, however, because of the electoral college that means that roughly 1.7 million votes are "wasted" because Clinton only needs to get one more vote than Trump to win all the electoral votes from that state (29). This process would be repeated for all the states, that is how you get to a result where Clinton had nearly 3 million votes more than Trump, but lost, those 3 million votes are wasted.
https://en.wikipedia.org/wiki/United_States_presidential_election_in_New_York,_2016

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. Although, in reality, most people have very little contact with their representatives in Congress.

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, for "high crimes and misdemeanors," and 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. The House only requires a simple majority to bring charges, but the Senate requires a 2/3 majority to convict.

There have only been four impeachments in U.S. history against Andrew Johnson after the Civil War for supposedly sabotaging Reconstruction in the South, and Bill Clinton in 1998, and the two impeachments against Trump (the only President to be impeached twice). So far, no President has ever been convicted and 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. 

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. Judges are appointed by life-terms, something which is highly controversial. In the next class we will explore ideas like term limits for judges. 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. Courts can also overturn previous cases. The most recent example is the court overturning Roe v. Wade, which we will talk about more when we get to the section on the Judicial Branch later in the semester. 

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 hearing a case on appeal from a lower court. People appeal to the Supreme Court after they have gone through lower courts, although the Supreme Court can choose not to hear a case. The Supreme Court receives thousands of requests a year, but only grants about a 100 of these requests a year. 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. 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. What is the meaning of reading out the Constitution word-for-word except to symbolically show 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 they are not willing to confront these aspects of the American past, in effect censoring aspects of American history that do not fit their idealized vision of American history? 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, maybe they are unfamiliar with the saying, "the truth hurts." This has serious consequences, it was the failure to deal with slavery in a system supposedly based on open debate that eventually led to the breakdown of the system and the Civil War (the word "slave" or "slavery" is nowhere mentioned directly in the Constitution). Censorship today suggests a massive 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).

Supporters of the Constitution began to refer to themselves as "federalists" for the support of the federal system of government. Opponents who favored independence for states and wanted to keep the federal government weak, were referred to as "anti-federalists." 

The Federalist Papers were written by James Madison (1751-1836) who would become the 4th President of the US, Alexander Hamilton (1757-1804), and John Jay (1745-1829). To persuade the public to support the ratification of the Constitution, they published articles in New York newspapers under the pseudonym, or pen-name, Publius. These essays, now collected as a whole, form the definitive interpretation of the Constitution, from pretty much the same people who wrote it, Madison and Hamilton in particular. 

Federalist No. 10, for example, is important because it lays out the theoretical framework for the current system of government, in other words why do we have this government in the first place? Madison makes it clear that the purposes of the federal government, or the Union, the union of states, is beneficial because it will best control the effects of "factions," what he calls the "disease" of all popular governments. Today, we call them "special interests" or just interest groups, but the meaning is the same. Some people seem to think the government was founded by moral idealists, but on the contrary, the founders had a pessimistic view of human conduct. Madison's theory presupposes the theory of pluralism associated with Dahl, Bachrach, and Baratz. Modern pluralists, like the federalists back then, argue the only way to control factions are to balance them against each other. Madison cautions that you cannot even deal with the "causes" of faction because to do that would very likely violate our liberties, but can only control the "effects" of faction, as he says:

James Madison

The latent causes of faction are thus sown in the nature of man, and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation and practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.

In language that sounds very much like Karl Marx and Friedrich Engels, Madison argues for the centrality of class conflict in politics, although this was written decades before Marx is even born. Nor, was Madison the only great political thinker to come to this conclusion, it is clearly evident even in Plato and Aristotle, and indeed all major political philosophers.

Where Marx sought the abolition of class conflict through socialism, Madison seeks to contain class conflict through the Constitution. The greatest danger from factions, Madison thought, were "majority factions" (i.e. the poor). Madison is confident that a minority faction can be handled by the mechanisms of popular government, although modern research has cast doubt on this assumption. Majority factions have spelt doom for democratic governments since ancient times, Madison argues. He believes that the Constitution contains the "cure" for the democratic "disease." He singles out two aspects: representative government and the large size of the state. He identifies these as the major difference between "republican" and "democratic" government. Democracy was kind of a dirty word for many of the founders and they preferred "republic" (Latin for "the people's business") instead. The point he is trying to make is that he believes that voting for representatives, from among the "wise property owners," would add stability to the government. 

In a reversal of ancient political philosophy: he argues the large size of the republic is more stable than a smaller democracy (the ancient polis) which must remain close to the local people. His arguments for size are: 

a) The more people there are in the country the more chance competent and capable people will be found for office where you are more limited in choices in a smaller community. 

b) And that in a larger population it will be harder to fool all the people. 

c) He also argues that a larger population makes it harder for factions to dominate, as he says: "Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other"

Again, the economic dimensions of this conflict are clear to anyone who has ever read The Federalist Papers: "A rage for paper money, for an abolition of debts, for an equal division of property, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State" 

In No.s 39 and 48 he outlines some of the principles of the federal system and when it impacts the states (federal) and when it will impact the people directly (national) and outlines the importance of "separation of powers" and the dangers of legislative tyranny if too much power is concentrated in one branch of government.

In No. 51 he again outlines the dangers of factions and again suggests that the diversity of society will reduce the influence of factions. This is called "pluralism" today and is still dominant in American politics, for example in Robert Dahl's research on political elites:

Whilst all authority in it will be derived from and dependent on society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of the individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of the country and number of people comprehended under the same government.

 Madison's essays also deal with the infamous 3/5 compromise in the Constitution. Since the number of people in your state influences the number of representatives your state gets, Southern politicians hypocritically thought to count slaves as people, in order to increase their representation without of course granting any political rights to slaves. Northerners, hardly more moral, objected that slaves are property not people, and should not be counted. The "rational" compromise was to count slaves as 3/5 of a person, and is found in the Constitution as I said in the previous lecture.


85 articles were written altogether. Madison wrote 29, Hamilton wrote 51, with some debates over authorship, (Jay wrote five and is hardly mentioned).

Hamilton’s articles 

Alexander Hamilton

are focused on pointing out the weaknesses of the present government under the articles of Confederation, and advocating the stronger national government, or in Hamilton’s terms, "energetic government," that he argues is the design of the Constitution.

No. 78 is an early defense of the principle of "judicial review" that gives power to the Supreme Court, to strike down laws, or other actions, that contradicts the Constitution. This concept would not be practiced by the judicial branch until the landmark Supreme Court case Marbury v. Madison in 1803.

What were the flaws of the government under the Articles of Confederation that Hamilton was specifically concerned with? Why was a strong national government the solution to the problems that Hamilton saw? Consider the following quote by Hamilton from no. 15, “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged", another way of stating the idea of checks and balances: power checks power.

In Federalist 23, Hamilton says this about the Union, the term used to describe the national government as representing all the states together: “The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.” 

“Internal convulsions” is most likely a reference to Shay’s Rebellion, an uprising of farmers in Massachusetts in 1786 protesting the high levels of debt they incurred, many of them war veterans, and whose houses were being foreclosed on.

Hamilton was less restrained about using military force than most of the other founders, even George Washington. Consider this quote also from Federalist 23: 

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means to which may be necessary to satisfy them [Hamilton’s italics].

In Federalist 78, Hamilton gives his argument for judicial review. He says:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Also: 

A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

How does this relate back to the idea of separation of powers and checks and balances, which define the American system?

Although Hamilton invokes “the people” to justify the power of the courts over the legislature, the courts were often times used to strike down laws that were seen as hurtful to business interests. Since the legislature was more democratic there were fears that popular interests would pass laws to redistribute wealth, or tax profits.

These documents make up what G.K. Chesterton called the "creed of America", and form the foundation of American political culture.  However, societies have always had to create some kind of mechanism to transmit culture from generation to generation. Traditionally, this role has been played by religion and the education system. At the same time, every generation has to also reinterpret these values to some extent to fit into modern circumstances, something definitely easier said than done.