The American Constitution: Institutional Features and Enumerated Powers

1. The American Constitution: Institutional Features and Enumerated Powers The Framers’ Constitution as a Solution to the Crisis of Republican Government

2. Addressing the Problems of the 1780s Within the Imperatives of Institutional Design The Constitution had to address the problems of the Articles of Confederation and the state governments – 1) the impotency of the national government, 2) commercial warfare between the states, 3) their corporate aggressiveness and the threat of civil war, 4) violations of individual rights within the states, 5) the inability of the national government to provide adequate national security and establish the status of the United States as an equal nation within the community of independent nations - without violating core principles of republicanism, popular sovereignty, federalism, and natural rights.

3. Rejected Alternatives • Monarchy and Mixed Government • Neither consolidation nor confederation was possible. • “Short leash” republicanism was rejected as incompatible with the protection of rights and the promotion of “good government.”

4. How Does the Framers’ Constitution Address the Problems of the 1780s?

5. Problem under the Articles: No Power to Compel Taxation Solution in the Constitution: Empower the National Government with the power of taxation. Article I, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” Most delegates did not expect that direct taxes would be extensively used although they were made constitutional. Impose duties and land sales created the bulk of federal revenues until the 20th century and the imposition of an income tax. Neither states nor the national government was permitted to tax exports under the Constitution.

6. Problems under the Articles: No power to regulate commerce and commercial warfare between the states • Solution in the Constitution: The Commerce Clause: Article I, Section 8, Clause 1,3: “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. The commerce clause creates a national common market for the United States as affirmed in Gibbons v. Odgen.

7. Addressing the National Debt The United States and the states had gone over 400 million dollars in debt to fight the Revolution. Almost all leaders in the nation – Federalist as well as Anti-federalists – believed that this should be paid. Otherwise, our credit and credibility across the world would be severely undermined. Article VI of the Constitution stipulates: “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” But three questions arose. Would the state debts be assumed by the national government? Would the debt be refinanced but perpetuated or financed with goal of paying it off? Would discrimination be made between the current and original holders of the national debt? (Would, in other words, the original holders of the debt receive any compensation?)

8. Conflicting Systems of Political Economy: Hamilton Versus Madison • The addition of a power to regulate commerce did not, however, mean that the Framers of the Constitution had the same economic vision. The visions of Hamilton and Madison were quite different even as they left the Constitutional Convention.

9. Hamilton’s Mercantile Economic Vision • Beginning in the 1780s, Hamilton believed that a perpetually funded debt and a national bank could be used as means of facilitating the growth of investment capital in the young republic. Getting wealthy merchants and mercantile men to invest in the national government, Hamilton believed, would tie their financial fate directly to the fate of the national government. They would not therefore let the republic fail. Hamilton also favored the development of large scale, public American manufacturers subsidized through government bounties. A nation that did not produce its own agricultural products and household manufacturers, Hamilton argued, would be primitive and lack the productive capacity generated by the division of labor in more advanced societies. It would also ultimately not have an adequate army or navy. [

10. Jefferson’s Celebration of the Independent Farmer • “Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example. It is the mark set on those, who not looking up to heaven, to their own soil and industry, as does the husbandman, for their subsistance, depend for it on the casualties and caprice of customers. Dependance begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition…. [G]enerally speaking, the proportion which the aggregate of the other classes of citizens bears in any state to that of its husbandmen, is the proportion of its unsound to its healthy parts, and is a good-enough barometer whereby to measure its degree of corruption…. [L]et our workshops remain in Europe…. The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body.” Thomas Jefferson, Notes on the State of Virginia.

11. Madison and Jefferson’s Commercial Agrarianism • In contrast to Hamilton, Madison and Jefferson believed that the national debt should be paid and paid off, not perpetuated. They hoped that the United States would remain primarily an agricultural nation. The independent farmer, they believed, would not be beholden to either an employer or government patronage for his livelihood. The cornerstone of this economic vision was the policy of commercial discrimination against foreign nations that discriminated against American goods. Such a policy, Madison and Jefferson steadfastly – if perhaps quixotically – believed would compel foreign nations to open markets to America’s surplus agricultural products. An open market for American goods would, in turn, insure that large numbers of Americans did not have to become employed in manufacturing and thus that the republic would remain agrarian and virtuous.

12. Was the Constitution the Institutional Framework for Capitalism? • “One need not resort to conspiracy theory to argue that the Constitution provided not just the historical capstone of American republicanism but also the institutional cornerstone of American capitalistic development and that some of the framers, at least, intended it. The powers given to Congress and the ones denied to the states are evidence enough. By creating a common market, a national system of taxation and finance, a common money system, a communications network, by granting legally enforceable property rights to inventors and authors, by denying to the states the right to ‘coin money...emit Bills of Credit...make any Thing but gold and silver Coin a Tender,” pass bills of attainder, ex post facto laws, and laws altering or ‘impairing the Obligation of Contracts,” the Constitution created a legal environment far more favorable to entrepreneurial values than anything America had known. Where in any of the original state constitutions is there a comparable list of permissions and prohibitions?” - Edward Countryman, “Of Republicanism, Capitalism, and the ‘American Mind’,” The William and Mary Quarterly, Third Series, Vol. 44, No. 3, The Constitution of the United States (Jul., 1987), pp. 556-562

13. Problem under the Articles: Corporate Aggressiveness of the States • Solution in the Constitution: Article 1, Section 10 prohibitions against the states: • “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal.” • No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. • No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

14. Problem under the Articles: Threat of Intervention of Foreign Nations in North America Strong Executive is created with the power as Commander in Chief Standing Army is created under the Constitution. No longer will it be held that the country can be defended by local militias.

15. Problem under the Articles (from the perspective of the large states): large states are not proportionately represented in the national legislature • Partial Solution in the Constitution: Proportional Representation in the House of Representatives • Revenue Legislation Must Originate in the House. Article I, section 7 grants the House the sole prerogative to originate revenue legislation. This was a concession to the large states. This important power, it was argued, would first be subject to approval in the body in which the large states were more completely represented and had greater power. • Incidentally, this power has subsequently become the subject of considerable dispute. Everyone agrees that taxes measures (revenue raising measures) must originate in the House, but the Constitution does not directly address appropriations or spending measures. Must they also originate in the House? The House and the Senate disagree.

16. Problem Under the Articles: Majority tyranny within the states • Solution in the Constitution: Article 1, Section 10 prohibitions against the states: • No State shall .... coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

17. Preventing the National Government from undue Responsiveness Solution in the Constitution: Long Leash Republicanism. Only one branch of the national government – the House of Representatives - is directly elected by the people. The Senate is elected by the state legislatures, the President through an Electoral College, and the Judiciary is appointed by the President and confirmed by the Senate. “The Federal Pyramid”

18. Preventing the National Government from undue Responsiveness The Extended Republic

19. Separation of Powers and Long Leash Republicanism The system of separation of powers set forth in the Constitution was designed to protect against legislative encroachments on the other branches and to control popular majorities. In part as a result of their experiences with the state governments during the mid-1780s and in part because their accompanying understanding of the nature of republican governments, Madison and the Federalists viewed the House of Representatives as a passionate, powerful, ever encroaching branch that necessarily “predominates” in republican governments. Tyrannical majorities, they believed, would be most likely to capture this branch. The checks given to the Judiciary, Executive, and Senate - including life tenure for judges, the qualified executive veto, and especially bicameralism - were thus designed to increase the independence and power of the weaker and more indirectly selected branches so that they had sufficient means to temper unjust legislative majorities and to defend themselves from constitutional encroachments from the House of Representatives.

20. Separation of Powers (continued) • Why do we have separation of powers? • a) Prevent tyrannical government • b) Prevent majority tyranny • c) To insure impartiality and the rule of law. No man should be a judge in his own cause. No branch should both make and interpret the laws or make and execute the laws. • d) “Good” government – Separation of powers guards against inept as well as tyrannical government.

21. Separation of Powers (continued) • How is Separation of Powers maintained? • a) Not by periodic revisions called by the people, or merely marking the different powers out on paper. • b) Separation of powers is maintained by sharing powers among the branches in such a way as to give to the members of each branch “the necessary constitutional means and personal motives to resist encroachments of the others.” (The Federalist No. 51) Members of each branch must jealously guard the sphere of constitutional authority assigned to their branch against encroachments by the other branches.

22. Separation of Powers (continued) The conception of separation of powers under the Constitution also relies on a division of labor between the branches. It suggests that some powers are by their nature executive, legislative, and judicial and thus belong in the appropriate branch. It also suggests that under the Constitution the various branches have been designed – by the virtue of how the officials in that branch are selected and the length of term of office – to exercise certain powers.

23. The Relationship of Mode of Selection, Number, and Term of Office to Power Exercised in the Framers’ Constitution. • Thus, Senators are given a long length of office and are expected to have an institutional memory in order to exercise power in the area of foreign relations. • The President is “unitary” to allow for the swift executive of powers he has as commander in chief. • Judges are given life terms to promote their understanding of the law and to exercise judgment in the service of upholding the law. • The House of Representatives is numerous and members serve short terms to insure that they reflect the will of the people.

24. Problem under the Articles: Difficulty of Amendments • Solution in the Framers’ Constitution • Create a new system of amendments that allows for a majority of the states acting in unison to amend the document. • Amendments can be proposed by a) two-thirds of the members present in both branches of the national legislature or b) by a special convention called at the request of three-quarters of the states. • Amendments can be ratified by a) three quarters of the states or b) special conventions held in three quarters of the states.

25. Was the Framers’ Constitution Consistent with the Principles of Republicanism and the American Revolution?

26. The Federalist Persuasion (Popular Sovereignty and Republicanism) • Popular Sovereignty and Republicanism is secured in the Constitution: Popular Sovereignty – The government must be “strictly republican” or “wholly popular.” • “If we resort for a criterion, to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour. It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. The Federalist No. 39.

27. Federalism (According the Federalists) • National Supremacy is limited to those powers enumerated in the Constitution or fairly implied from them. The states The states retained powers not given to the national government or implied from those enumerated constitutional powers, but the states had no right to secede from the union. • The national government was not granted a universal or even qualified veto, but national supremacy was both insured and limited through enumeration, judicial review of state laws, the national supremacy clause, and Article I, Section ten restrictions on the states. • The Constitution reserves to the states the exercise of the police powers over health, safety, and morals of the citizenry.

28. A Bill of Rights is Not Necessary (Natural Rights are not threatened by the Constitution) • Paper declarations do not protect natural rights. • Institutional arrangements and extent of territory will protect rights. • The states have bills of Rights • The Constitution is a Bill of Rights

29. The Anti-Federalists

30. Who Were They? • Small farmers and debtors? • But also some wealthy and powerful men who favored state sovereignty. • Men who were fastened to the Whig ideology of the Revolution that feared corruption and governmental tyranny.

31. Anti-federalists: The True Federalists The Federalists assumed the name Federalists, but it applies better to the Anti-federalists who were the real proponents of a decentralized system built upon the idea of a limited national government and substantial local autonomy. A leading Anti-federalist, Elbridge Gerry suggested that the proper labels should be “Rats” and “Anti-Rats” for those in favor and those opposed to ratification.

32. What Did the Anti-Federalists Believe? • The Government Under the Constitution Would Become Tyrannical. They feared... • Presidential Reeligibility • Life tenures for Federal Judges • Too Few Representatives • Government was Too Distant from the People • Inadequate System of Separation of Powers

33. The Anti-Federalists (continued) • The Small Republic Thesis – They believed that the United States was too large to have a republican form of government. Republics could only exist in small areas with homogeneous interests where people could know their representatives.

34. The Anti-federalists’ case Against the Extended Republic • A. Elections from large districts and extent of territory were efforts to diminish the chances for elections of men of middling rank with only local reputations. When Madison and other Federalists defend elections from large districts as a means of extracting the “purest and noblest characters” in the society and promoting the choice of men with “the most attractive merit and the most diffusive and established characters,” they were, according to many Anti-federalists, really using “code words” not simply for the selection of a natural aristocracy but for the choice of men who had extensive property, education, refinement, and social status and who were unlikely to favor paper money or low taxation rates. Men of property more easily form associations and unite their interests. The Federalists also sought to diminish personal solicitations (crash electioneering such as making speeches) over permanent popularity. • B. Many of the Anti-federalists saw the adoption of an extended republic as a means of preventing the operation of local democracy as it had developed in the states during the mid-1780s.

35. Union and a Strengthened Confederation • The Anti-federalists said that they did not oppose union, only a consolidation of the states into one grand republic. They favored some additions to the powers of the national government.

36. Conservatives or “Men of Little Faith” Anti-federalists wanted to conserve the government under the Articles. They were conservatives in this sense and feared the adventurousness of the Federalists.

37. The Addition of the Bill of Rights to the Constitution The Bill of Rights became a part of the Constitution as a result of the dynamics of the ratification struggle. The Anti-federalists raised the objection that there was no bill of rights. The Federalists’ responded by agreeing to recommend amendments to the Ist Congress after ratification. James Madison fulfilled this campaign pledge. But did Madison give the Anti-federalists what they wanted?