Unit 2--constitutional framework issue: Were the motives of the framers of the U. S. constitution elitist?



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Federal Government 2305—Unit 2 Lecture Notes

UNIT 2--CONSTITUTIONAL FRAMEWORK
ISSUE: Were the motives of the framers of the U.S. constitution elitist?
1. Define and explain the significance of the following:

Magna Carat- 1215 King John was forced to sign it. First time the powers of the British King were limited. Eventually led to our government. First tidal step on the road to democracy.

John Locke- Single most influential philosopher (British) living in 1600’s that wrote political theories, which influenced our framers and original leaders. He was a keynote designer in our political ideas.

1. Principle that all men are created equal.

2. All people have “certain unalienable rights” including life, liberty, and property (the pursuit of happiness)

3. Governments are created by people “To Secure These Rights”

4. All governmental powers is based on “The consent of the governed”

5. If Government becomes destructive of these ends, it is the right of the people to alter or to abolish it.



  • Natural Rights- God Given Rights (Given at birth simply because we are people)

  • Shay’s Rebellion- Farmers In Massachusetts who could not pay their taxes in 1786. -7 could not pay taxes because of recession in all states. - Convinces the Philadelphia convention congress to get together and write constitution. Purpose of Philadelphia convention was to revise the articles of confederation. Was supposed to suggest changes.

  • Bill of Rights- Most complete grouping of rights in the constitution. Tells us the rights of the people.

  • Supremacy clause- if a federal and state law conflict then the Federal Law is Supreme over the State Law. The Constitution is Supreme over Federal Law.

Exclusive, concurrent & reserve powers:

  • Exclusive powers- powers only the national government has

  • Concurrent powers- powers shared by the national and state government

  • Reserved powers- powers only the states have - 10th Amendment


2. Explain the purpose and functions of constitution in the American political experience.

A. A constitution defines and limits government powers.

B. Sets down in writing, the rights of the people.

C. Tells us the structure of government. Judicial, legislative, and executive branches established in writing.

D. Includes the rules and operating procedures for government.

E. It is the supreme and final law of the land. It is above all other laws. It is semi permanent. (some rights are so vital and necessary that some of them are in the constitution to prevent them from being changed without first experiencing great difficulty)




  • Discuss government under the articles of confederation: its structure, powers, and defects.

Our government from 1783-1789. Confederacy (Strong states and a weak

National Government) Confederacy

A. Strong states weak national government


  • “League of friendship”

  • Structure

a. one branch legislature

No executive- Feared another tyrant or monarchy

No Judiciary- feared would interpret the Constitution taking away power

From the states - so no one interpretation of the Constitution and no way

To settle disputes between the states

Congress- Unicameral- One house congress

a. Every state had one vote.

b. One year terms & Recall

c. Vote on instructions for home state

d. Paid by State

e. 9 of 13 for most action -- a ¾ majority

f. Powers Lacking

a. Tax- Cannot Tax - so government bankrupt

b. Regulate Trade- Cannot Regulate the Economy

c. Raise Army- Feared Military Control or enforcement.


  • Amend Procedures- to amend the articles you needed unanimous approval of all13 states - impossible - never achieved

GEORGE WASHINGTON SAID THE ARTICLES GOOD WAS THAT IT TAUGHT US WHAT GOVERNMENT SHOULD BE LIKE.




  • Discuss the six major constitutional principles in the U.S. Constitution

  1. Separation of Powers

Divide Government between three separate branches Legislative, Judicial, and Executive branches.- in order that no part of government becomes too powerful from Monticule

  1. Checks and balances

Each branch has one or more powers to keep the others in check.

Examples:

President can veto bills passed by congress

Congress can override veto

Senate must ratify treaties

Courts power of judicial review over Acts of Congress & President



  1. Federalism

Divided up government power more evenly between 2 independent levels of government - the national and state government - this was a compromise between the confederacy (strong states & weak national government) and the unitary system (national government having all of the power). This was a more even division of powers.

    • Reserved powers - only state has these powers - defined in 10th Amendment


  1. Judicial Review

Power of our courts to determine the constitutionality of any government law or any government action. - By President, Congress states & contributes to the power of the courts.

  1. Limited Government

One of the ten essentials of a democracy.

Outlining restrictions on powers - Article I - Sec. 9 & 10 - list of powers prohibited national government & states



Bill of rights. - rights the national government (and eventually the states) cannot deny the people

  1. Popular Sovereignty

Government’s power rests with the people.

People have the final say and are the ultimate authority. - through elections and right to criticize and lobby government.




  • Discuss whether democracy, in the modern sense, existed in the newly created nation in 1789 when the U.S. Constitution went into effect.




  • No they intended to establish a Republic, composed of elected officials chosen by the elite. People weren’t directly electing the government – the only part of the national government to be elected by the people in 1789 was the House of Representatives; US Senators were chosen by their state legislators and the president was chosen by electors in the Electoral College-




  • to vote in 1789 – the were 4 key requirements a person had to meet:

  • white

  • male

  • property owner

  • and meet some religious requirements ( in some states)

  • only 5% were eligible to vote.

  • Why? The elites didn't trust common people? Over 200 years we have become slowly and painfully become a democracy—through amendments to the US Constitution and through various laws and changing practices




  • Discuss and evaluate the various methods (formal) and informal of changing the U. S. Constitution




  • A proposed Amendment by a two- third vote of both houses of Congress

  • Then goes to state legislature who must pass it by a 3/4th vote. We’ve had 27 Amendments.

Other ways to change Constitution:

  • Court Decisions - a reinterpretation of the Constitution—examples

    • 1st amendment-- organized school prayer, legal for 175 years, is now unconstitutional –as of 1962

    • 14th Amendment—Segregation (having separate facilities for blacks and whites was legal from 1896 until 1954 and did not violate the 14th amendment’s guarantee of “equal protection” of the laws –this was overturned in 1954—Brown v. Board of Education

    • Right of Privacy-- Abortions could be legally restricted or banned by the states until 1973 when Roe v. Wade established that a woman’s right to privacy included controlling her body and deciding whether she wanted to have the child or terminate the pregnancy.

  • Presidential Acton- Ex- the president’s war powers have gradually been allowed to expand over 200+ years of U.S. history as presidents stretched their powers as commander-in-chief to respond to varies challenges the U.S. faced

Examples include:

  • The Tripolitan War (1805)

  • The Korean War (1950-53)

  • The Vietnam War (1965-75)

  • The Grenada invasion to remove the Marxist government and protect US lives (1986)

  • The Panama invasion to remove dictator Noriega from power (1991)




  • Congressional action- “Equal Access” Law. All student groups have the right to meet on campus. - even religious groups—this overturned court decisions

  • By changing political cultures and practices & beliefs. Ex- Electoral College—the manner in which electors are chosen and how they are supposed to vote




  • Discuss and evaluate Charles Beard’s critique of the U. S. Constitution

Charles Beard wrote AN ECONOMIC INTERPRETATION OF THE CONSTITUTION Of THE U.S. in 1913

  • Held three major points in his book

  1. THE U.S. CONSTITUTION WAS WRITTEN BY AN UNREPRESENTATIVE PROPERTIED ELITE - true – but was this an elite conspiracy as Beard suggested OR was it because they were the most qualified at that time??

  2. THEIR MOTIVE WAS ECONOMIC- TO PROTECT THEIR LAND AND INVESTMENTS - true- but was that their only motive—most historians say no—they wanted to establish a government of limited power that would not be tyrannical and would be stable enough for future generations of Americans. Also, they delegates themselves were not a monolithic group, but came to Philadelphia with conflicting views and interests (ex: slavery)

  3. THEY STRUCTURED GOVERNMENT IN SUCH A WAY SO AS TO FACILITATE ELITE CONTROL OF THE SYSTEM

According to Beard, the proof of this is in the four checks the framers on the Constitution placed in our structure of govt. that acted as 4 checks on the powers of the people:

  • Senate chosen indirectly—by the state legislatures; more likely to be elites; and the Senate could then block any “dangerous” legislation passed by the House of Representatives (chosen by the people—and thus more likely to be responsive to the common people)

  • Electoral College—composed of elites would were to use their own “superior judgment to select a president—not follow public opinion, increasing the odds of a member of the elite to be selected or someone who at least favored the elite

  • President's veto –if Congress did anything “rash” the president could veto it, thus “saving” the elites from dangerous legislation

  • Supreme Court: life terms (very undemocratic and elitist); their power of judicial review which allows them to rule as unconstitutional any government law or practice that threatens elite interests

    • Historians agree there is much truth to his assertions, but also some exaggeration;

    • Compared to the other governments existing around the world at that time (monarchies, dictatorships) our system was very progressive and even radical—examples: elections, a Constitution & Bill of Rights; limited terms for most government officials




  • 1st Amendment: One of our most important amendments - containing 6 mentioned rights and implied ones - free exercise clause - freedom to believe & worship: establishment clause - over non- believers; freedom of speech; freedom of press; right to petition government for a redress of grievances; and the 2 implied rights: freedom of association and the right to demonstrate. Together these are called "freedom of expression".




  • 2nd Amendment: Protect our right to bear arms - but the courts have ruled this is not absolute and it applies only to serving in the militia/military and relates to the defense of the nation.




  • 4th Amendment: Protects us against "unreasonable search and seizure".




  • 5th Amendment: Protects the suspects and the accused in several ways: a grand jury indictment before being taken to trial for federal felonies; no self-incrimination (right to remain silent); no double jeopardy (being tried twice for the same crime); right to due process of law (fair procedures must be followed ex. Miranda rights must be read before police interrogate a suspect); and no private property taken for public use without just compensation.




  • 6th Amendment: Protects suspects and the accused in several ways: we are guaranteed the right to a speedy and public trial by an impartial jury; trial must be held in district/state where crime committed; must be told nature of accusation against you; right to confront witness against you; right to subpoena witnesses on your behalf; and right to a lawyer.




  • 7th Amendment: Guarantees right to trial by jury in civil cases where amount of dispute exceeds $20.




  • 8th Amendment: Protects the people --no excessive fines or bail and no cruel and unusual punishment.




  • 9th Amendment: The listing of our rights in the constitution shall not be interpreted to be a complete list --there may be others that are not mentioned that the people have (ex. right to privacy)




  • 10th Amendment: Defines state government (reserved) powers as those powers not given to the national government and not prohibited the states.




  • 13th Amendment: Abolish slavery nationwide.




  • 14th Amendment: Granted blacks citizenship (reversing Plessy v. Ferguson) and prevents the states from denying a person the due process of law and the equal protection of the law.




  • 15th Amendment: Granted blacks the right to vote.




  • 16th Amendment: Made the federal income tax constitutional (& overturned a U.S. Supreme Court decision)




  • 17th Amendment: Changed the method of selecting U.S. Senators from being chosen by the state legislature to being elected by the voters.




  • 19th Amendment: Gave women the right to vote.







  • 24th Amendment: Banned the use of the poll tax in national elections.




  • 25th Amendment: Provided provisions for filling a vacancy in the vice presidency and provisions if the president becomes "unable to discharge the powers and duties" of the office.




  • 26th Amendment: Lowered the voting age nationwide to 18 years of age.




  • 27th Amendment: A change (an increase or decrease) of congressional pay goes into effect only after the next election for the House of Representatives.


How has the amending power been used?

  • To add to national government power: Amendments 13, 16, 18

  • To subtract or limit national government power: Amendments 11, 21, 27

  • To expand the electorate and its power: Amendments 15, 17, 19, 23, 24, 26

  • To reduce the electorate's power: Amendments 22

  • To limit state power: Amendments 13, 14

  • To make structural changes in government: Amendments 12, 20, 25


Discuss the organization of the U.S. Constitution.

  • Article I-The Legislative branch - It establishes the qualifications, powers - Article 8 (national government powers including the necessary & proper clause), rules, and operating procedures for Congress. The process of how a bill becomes a law is explained. It also included a list of powers prohibited Congress - Article 9 - and the states - Article 10. Also included is a discussion of the impeachment process and the process for punishing or expelling a member of Congress.

  • Article II- The Executive branch - It establishes the rules and operating procedures and the powers of the presidency. Also including the Electoral College and mention of grounds for impeachment.

  • Article III- The Judicial branch- it discusses the powers and structure of the judicial branch.

  • Article IV- Included here is the full faith and credit clause, the privileges and immunities clause, the process of admitting new states, and federal government guarantees to the states.

  • Article V - This discusses the amendment process.

  • Article VI- Included here is the supremacy clause and a prohibition of any religious test for office.

  • Article VII - The ratification process for the U.S. Constitution is explained in this section.


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