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The Congress

The Congress. Constitutional Foundations. Philosophy in the Constitution. The Framers were versed in the ancient Greek and Roman philosophical texts (Aristotle, Plato, etc.)

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The Congress

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  1. The Congress Constitutional Foundations

  2. Philosophy in the Constitution • The Framers were versed in the ancient Greek and Roman philosophical texts (Aristotle, Plato, etc.) • The Framers were strongly influenced by 17th and 18th century liberal philosophers on economics and government (Adam Smith, David Hume, John Locke, the Baron de Montesquieu, etc.) • As such the Constitutional framework represented conscious philosophic choices: • Democracy as opposed to monarchy or an autocratic form • Representative rather than direct democracy • Encoded protection of individual liberty

  3. Constitutional Politics • The Constitutional Convention was a political convention assembled to solve a political problem • Formulating the Constitution was a radical departure from their intended purpose • The document represents compromises among the assembled representatives of states with diverse interests • North vs. South • Big states vs. Little states • Agriculture vs. Industry • Slave states vs. Non-slave states

  4. Compromises • Bicameral Legislature and representation – compromise between big states and small states • The 3/5ths Compromise – between the slave states and the non-slave states

  5. Alternative Explanations • Pluralism: the constitution was a compromise among interested groups (farmers, land-owners, separatists, businessmen, etc.) • Elite Theory: the constitution was a document founded to protect rich land-owners • Charles A. Beard: An Economic Interpretation of the Constitution of the United States • “the Constitution [is] an instrument of class exploitation”

  6. The Federalist Papers • Combined Philosophy & Politics • The Federalist Papers are a series of 85 articles arguing for the ratification of the United States Constitution. They were first published serially in New York City newspapers. A compilation, called The Federalist, was published in 1788 • Authors wrote under the nom de plume of "Publius", in honor of Roman consul Publius Valerius Publicola.. • Most important & influential Federalist Paper was Federalist #10 dealing with the problem of faction

  7. Federalist 10 • Federalist No. 10 continues the discussion of a question broached in Hamilton's Federalist No. 9. Hamilton had addressed the destructive role of faction in breaking apart a republic • Federalist #10: The Union as a Safeguard Against Domestic Faction and Insurrection." • He defines a faction as • "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." • Federalist #10 Provided the justification for a republican form of government rather than a direct democracy. • In a direct democracy, there is no check against the tyranny of the temporary majority against the minority (see Socrates for piece de resistance)

  8. Federalist #10 • Faction cannot be suppressed without crushing liberty, and creating a homogenous society is impractical and antipathetic to liberty. • Hence faction must be controlled: harnessed to serve the state • Madison argues a small democracy cannot avoid the tyranny of a majority faction • Hence a large representative republic is necessary to protect against faction

  9. Representation • Developed out of the theories of Hobbes & Locke • As Madison argues, representation is a practical necessity given the size of the republic • Hinged on: • Developing diverse and competing interests • The nascent concept of government as umpire • Representation is geographic-based under the Constitution

  10. Popular Rule • Ultimate authority rests with the people (the people are sovereign per Locke) • Preamble: “We the People of the United States…” • 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” • All government officials are responsible to the people under the Constitution • Congress, the most directly responsive to the people, is the 1st branch addressed • Grew from dislike of the King

  11. Popular Rule (con’t) • The colonies had a long history of popular rule • colonial legislatures popularly elected • 1750, they were more popular and powerful than most governors, who were appointed by the crown • only 3 of 13 governors served more than 1 year term • only 1 governor had veto power • most colonial legislatures dealt directly with British Parliament

  12. Limited Government • Constitution is document of specific, enumerated powers • Government is empowered to do only certain things • Concept developed from writings of John Locke & Adam Smith • Smith: An Inquiry into the Nature and Causes of the Wealth of Nations • Experience with assertive monarchs • Frontier distrust of politicians

  13. Limited Government (con’t) • Not satisfied with the checks in the original Constitution, first Congress amends it: Bill of Rights • 10th Amendment: power remains with the people except for those powers specifically delegated by the Constitution • Caveat: A tension between this founding principle and the demands of the 20th century emerges • Door was left open for the expansion of federal role in the economy and society: • Article 1, Section 8, Congress shall “make all laws necessary and proper” to fulfill enumerated responsibilities.

  14. Separation of Powers: Checks & Balances • Baron de Montesquieu’s trias politica or “three branches of government” • Argued for specifically in Federalist #51: “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments“ by Madison: “In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

  15. Checks & Balances • Republican form of Government (Federalist #10) • A Bill of Rights • to secure certain individual rights against the government • Federalism (again #10) • Division of power between state and federal governments guards against any one faction taking over • Division of government into three branches • (executive, legislature, & judiciary) as well as different terms and different constituencies for each • CAVEAT: Are Powers *really* separate? • Separate Branches, Shared Powers

  16. Checks & Balances

  17. Federalism • Special case of the separation of powers: division of power between state and national governments • Neither can terminate the other (both have a constitutional right to existence) • Developed from the writings of Montesquieu and David Hume • Provided the security of Hobbes’s Leviathan state with the democratic prospects of the Athenian city-state • Also a practical necessity following Revolution

  18. The Plans

  19. Bicameralism continued • Madison realized that the bicameral legislature solves some of the problems that the nation was encountering. • He wanted it to be reflective of the people’s will, but he also wanted, to a certain extent, a detachment from the people • The solution was having the House’s representation based on population and the Senate representation based on the States.

  20. House Divided • In the House, you have to run for office every 2 years and entire house is up for contention. • In the Senate, you have to run for office every 6 years, and only 1/3 of the Senators are up for re-election. • The Senate was intended to be a more ‘deliberative’ body whereas the House was supposed to be most responsive to the people.

  21. Federal Supremacy • One nation rather than 13 colonies • Adopted as a resolution to the collective action problems inherent to the institution of government under the Articles of Confederation • adopted March 1781 • no president, no Supreme Court • in unicameral legislature, each state had one vote • even small matters required 9/13 vote (almost 70%) • large matters required unanimity • most important --- national government could not directly touch people • relied on states for taxes, army, navy, etc.

  22. Fed Supremacy (con’t) • Collective action and other problems inherent to the system became intractable • Who owned the land west of the of the Allegheny Mountains? VA or PA? • Tariffs created barriers to economic progress between the states • How would troops be fed? Clothed? • States facing internal revolt • Shay’s Rebellion – no standing army to respond • Constitution gave national government authority over people and states

  23. Why Federalism? • Collective Action Problem Applied • Under the Articles of Confederation, states were beset by a structure that prevented them from sharing the transaction costs inherent to a large country. • Transaction costs are the time, effort, and resources required to make collective decisions • Conformity costs are what one party prefers and the collective required

  24. U.S. Federal System • Thesis: . Federalism is enshrined in the Constitution, but political conditions have dictated how the doctrine of federalism has evolved.

  25. Mechanics of Federalism • Constitution divides power among: • federal government • state governments • the people • The federal government has three types of power: • Inherent • Delegated (Enumerated, Express) • Implied

  26. Delegated Powers • Enumerated powers are found in Article 1 Section 8 of the United States Constitution, which lists the specific powers of government granted to the United States Congress. • Chief Justice John Marshall: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.” • Enumerated powers include: • Regulate interstate commerce • Coin money • Raise armies

  27. Inherent Powers • Inherent powers are those powers not specifically stated in the Constitution, but considered necessary for any government to carry out its functions. • Cannot logically be held by both nation and state. • Derived, in many cases, from the Royal Prerogative Powers. • The Royal Prerogative is a body of customary authority, privilege, and immunity, recognized in common law jurisdictions possessing a monarchy as belonging to the Crown alone. It is the means by which some of the executive powers of government are possessed by and vested in a monarch with regard to the process of governance of their state are carried out • Examples include the inherent power to • Wage war • Conduct foreign affairs • Right to exist as a nation-state

  28. Implied Powers • Implied powers are derived from an enumerated power and the “Necessary and Proper” clause, a.k.a. the “elastic” clause. These powers are not stated specifically but are considered to be reasonably implied through the exercise of delegated powers. • This clause became the center of controversy from the early days of the nation when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist to today: • The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power • The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of Amendment X.

  29. Implied Powers 2 • President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall. • Examples of implied powers are vast: • EPA • Interstate highway system • NASA

  30. State vs. Federal Powers • There are two types of state powers in relation to the federal government: • Concurrent • Reserved • Concurrent powers are those exercised jointly with the federal government • Taxes • Environmental protection • Reserved powers are those reserved to the states under the 10th Amendment • “the powers not delegated to the U.S. by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people” • Tension with the elastic clause

  31. The Evolution of Federalism • Constitution left exact nature of balance between states and national government vague by necessity --- states had to be given some power • Constitution had to be ratified by states • At same time, founders clearly wanted a more powerful, more flexible national government than what they had experienced under the Article of Confederation

  32. Two Theories of Federalism • There were two competing theories of how federalism should operate in the early days of the republic: • Dual Federalism • Cooperative Federalism

  33. Dual Federalism • Constitution was a compact among the states—not the people • Declaration of Independence: ““That these United Colonies are, and of Right ougt to be Free and Independent States” • states are not subordinate to the national government, but rather exist dually on the same level with it. • Implications • States are supreme in some spheres • States are free to leave the Union at their own volition

  34. Cooperative Federalism • Constitution is a social contract among the people (see preamble) • As such the national government enjoys the people’s loyalty directly • Implications • States are subservient to the federal order • States are not free to secede

  35. The March of History • Historical developments resolved the issue in favor of cooperative federalism • Five crucial historical factors played a role in cooperative federalism becoming the dominant view of federal power • Chief Justice John Marshall • Civil War • Era of the Robber Barons • New Deal • Civil Rights Era

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