American Government Constitutions and the U.S. Constitution
Constitution: Root • The term constitution comes from the Latin constitutio, which refers to issuing any important law--usually by the Roman emperor. • Later, the term was widely used in canon law to indicate certain relevant decisions, mainly from the pope.
Constitution: General Definition • The set of rules prescribing the political process government institutions must follow to reach and enforce collective agreements • Written or unwritten guideline outlining the formal rules and institutions of government and the limits placed on its powers
Constitution Characteristics • Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary--but also the relationship of institutions within those branches. • Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. • It is thus the most basic law of an area from which all the other laws and rules are hierarchically derived; in some areas it is in fact called "Basic Law".
Constitution Classifications • Three Classifications of Constitutions • Codified • Partially Codified • Uncodified • A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. • An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
Classifications (con’t) • The Constitution of Australia is an example of a partially codified constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered part of the constitution. • The Constitution of the United Kingdom is an example of an uncodified constitution which consists of both written and unwritten sources and has no single written fundamental document.
Supreme Law of the Land • As the ‘basic’ of ‘fundamental’ law of the country, the Constitution is the supreme law of the land. • Thus any state enactments, federal statutes, regulatory policies, etc. are subservient to the Constitution and are null and void when they conflict with the Constitution. • From this principle stems the power of ‘judicial review.’
U.S. Constitution • Two general points • The Constitution was founded in philosophical principles • The Constitution was founded in a series of political compromises
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
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
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
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”
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
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)
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
7 Founding Principles of the Constitution • Representation • Popular Rule • Limited Government • Separation of Powers • Federalism • Federal Supremacy • Judicial Review
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
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
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
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
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.
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.”
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
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
Federalism & Bicameralism • A. The Basis of Representation: Population vs. State autonomy • 1. Virginia Pan • 2. New Jersey Plan • No real philosophical basis for bicameralism: political compromise between the two plans.
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.
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.
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.
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
Judicial Review • What institution is final arbiter of the meaning of the Constitution? • Constitution implies Court has this power: • Article III, section 2: "The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution....“ • Federalist Papers Explicit: • whenever a particular [law] contravenes the Constitution, it will be the duty of the [courts] to adhere to the latter and disregard the former.“ (N.B. A.H. speaking) • Derives from the notion of the social contract, which like other contracts needs to be interpreted by courts
Ratification Struggle • Constitution had to be ratified by 9 out of the 13 colonies in order to pass • Ratification of the Constitution was by no means certain. • A divide of interests existed between Federalists and Anti-Federalists • Federalists: large costal stages, commercial interests • Anti-Federalists: smaller rural states, agricultural interests
Ratification Debate • Debate centered on 2 questions • Is the government structure strong enough to work? • Is it so strong that it will be repressive? • Ratification wins largely because of • Collective action problems of the AofC • Lack of a credible alternative • Arguments of the Federalist Papers
Constitution: A Success! • The success of the Constitution hinged on several important factors • Attitude of compromise in text • Willingness to defer tough questions for later (i.e. slavery) • George Washington • Hamilton’s Fiscal Policies
U.S. vs. State Constitutions • Length • US Constitution: 8,700 words • State Constitution: e.g. 40,000 words • Frequency of Amendments • US: Rare • MO: Frequent • Focus • US: broad & general principles • STATE: narrow & specific provisions
US vs. MO • Authority • US: Supreme Law of Land • STATE: Subordinate to US Constitution • Caveat: Though states cannot restrict rights under Constitution, can expand