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Chapter 3 |
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Constitutionalism means that those who exercise governmental power are restricted by a higher law, a constitution, which legally establishes government authority. The U.S. Constitution is the supreme law of the land.
The Constitutional Tradition
A number of historical documents that preceded the Constitution impacted what it would say.
1. The Magna Charta in 1215 placed limitations on the monarch and established the precedent of limited government.
2. The Mayflower Compact in 1620 established the idea of a contract between the government and the governed.
3. The various Colonial Charters set the precedent in America for written contracts defining governmental power, as in Connecticut and Rhode Island, where the colonists drew up their own charters and presented them to the king.
4. The Declaration of Independence of 1776), written largely by Thomas Jefferson, set forth the framework and principles of the new American government. Jefferson sought to give legitimacy to the colonial cause and establish a basis for the new nation. Borrowing directly from English political philosopher John Locke, Jefferson's document asserted the rights of individuals, the contract theory of government, and the right of revolution.
5. The Articles of Confederation, 1781-1789 was the first constitution of the new nation. It established a weak central government that had only one house in Congress, which was not allowed to collect taxes or enforce laws directly, only through the states.
Troubles Confronting a New Nation
While the Articles of Confederation government won the War for Independence and laid the foundations of national unity, it soon faced serious problems, mostly financial in nature. The government lacked the power to tax the people and had to ask the states for money, however, the states refused to pay 90 percent of the funds requisitioned by Congress. Congress was forced to borrow money and the value of bonds fell precipitously. In addition, states slapped tariffs on each other's goods, which interfered with national commerce. Multiple state currencies led to financial instability; and open debtor resistance—particularly Shay's Rebellion (1786) by Western Massachusetts farmers—showed the government was unable to protect against civil disorder. Wealthy Virginia and Maryland merchants, supported by George Washington, issued the call for the Annapolis Convention (1786), which in turn called for the Constitutional Convention of 1787, with the intent of revising the Articles. The Constitutional Convention of 1787 was attended by 55 delegates selected by their state legislatures, and George Washington was elected president of the convention. They were all white males whom, as a group, were very highly educated for the time, wealthier than most Americans, and included many with training in law. They were cosmopolitan or nationalist in their outlook and their prestige and experience contributed to the success of their work.
Consensus in Philadelphia
The Founders reached a consensus on many issues. The Founders, following John Locke, believed in natural law endowing people with inalienable rights like liberty and property. The founders also believed in the social contract and that the legitimacy of the state derives from the consent of the governed. They were republicans with a small "r" —people who believed the government should be a republic ruled by elected leaders, not a monarchy. They were also nationalists, because they were committed to a strong and independent national government, albeit one with limited powers.
Conflict in Philadelphia
The delegates did not immediately agree upon the Constitution. The Virginia Plan proposed a bicameral legislature, but with the upper house chosen by the lower house and the president chosen by Congress. It also based representation in the lower house on population (Virginia was a populous state). Representatives from small states rallied behind the New Jersey Plan, which called for a unicameral (one house) Congress with equal representation for each state. The Connecticut Compromise, or Great Compromise, was proposed by Roger Sherman of Connecticut. It created the present bicameral Congress, with the House of Representatives based on population and the Senate, whose members were chosen by the state legislatures, based on equal representation of the states.
There were other conflicts and compromises as well. The Three-Fifths Compromise counted three-fifths of slaves for purposes of state representation and taxation, even though slaves were not allowed to vote. Another compromise pushed back the abolition of the importation of slaves to 1808, giving 20 years to allow plantation owners to import as many slaves as they needed. Article IV, Section 2, of the new Constitution even required the forced return to slave states of slaves who had escaped to the free states.
The Founders also favored property ownership qualifications for voting. They put no such qualifications in the Constitution, but left it to the states, all of which at the time had property qualifications and excluded women from voting or holding office.
Resolving the Economic Issues
While the Founders were mainly men of great means who stood to benefit if the new government survived to pay its debts, they did not act simply for their own economic gain. They agreed to give the new government the power to tax, and it stated clearly in the Constitution that the government would pay the debts of the old government. The new government's primary source of income would come through tariffs. The Congress would regulate commerce among states and with foreign nations, and a common market was created that prohibited states from imposing tariffs on interstate trade. Finally, only the national government would issue currency.
Protecting National Security
The Constitution established the armed forces of the United States and made the president the Commander-in-Chief. Congress was given the power to declare war. In times of need Congress may call up the militia and "nationalize" it; the U.S. relied primarily on the militia until World War I. In foreign affairs, the president was given the power to make treaties and appoint ambassadors, but only with the "Advice and Consent of the Senate."
The Structure of the Government
The heart of the Constitution is the National Supremacy Clause in Article VI, which ensures that the Constitution is the supreme law of the land and that the laws of the Congress are supreme to those of the states. Other key structures of the new government were federalism in which power is shared with the states, republicanism in which public power is delegated to small group of elected officials and power is divided into separate institutions, and democracy in which government ultimately rests with the "consent of the governed."
Separation of Powers and Checks and Balances
To protect their new federal democratic republic, the Founders placed great faith in the separation of powers and in checks and balances. The separation of powers is the constitutional division of governmental powers among the legislative, executive, and judicial branches. Checks and balances are those constitutional provisions giving each of these separate branches certain checks on the actions of the others. A leading example is judicial review, the right of the Supreme Court to hold legislation of Congress or acts of the President unconstitutional (established by Chief Justice John Marshall in Marbury v. Madison, 1803).
Conflict Over Ratification
The Founders wanted to ensure ratification of the new Constitution and therefore required only 9 of the 13 states needed to approve it. Also, ratification was submitted not to state legislatures but to state conventions. Supporters of the document waged an effective media campaign through the publication of a serious of essays, known as "The Federalist Papers," written in support by prominent colonial supporters. Opponents, who were known as the Anti-Federalists, complained that the government created an "aristocratic tyranny" with no direct election of the Senate or the president. They also feared the loss of power at the state level, but their most powerful argument was the lack of a bill of rights to protect individual liberties.
A Bill of Rights
The Federalists initially argued a Bill of Rights was unnecessary as the federal government was one of enumerated powers only, and ability to restrain individual liberties was not among the powers enumerated in the Constitution. Anti-Federalists refused to trust their liberties to this logic. James Madison proposed a Bill of Rights in 1789, sent to the states as 10 amendments to be ratified. The Bill of Rights limited the powers of the national government only, and did not protect individuals from the states or from private corporations. However, mostly in the first half of the twentieth century, a majority of the provisions of the Bill of Rights were applied to the states by way of Supreme Court interpretation of the due process clause of the Fourteenth Amendment (1868).
Constitutional Change
The Constitution has changed over time through both formal and informal means. In the formal process of change, an amendment must be proposed and ratified, and there are two methods for proposing and ratifying. Nearly all amendments are proposed by two-thirds vote of Congress and ratified by the legislatures of three-fourths of the states. The Twenty-First Amendment (repeal of Prohibition) was also proposed by two-thirds vote of Congress but was ratified by state ratifying conventions in three-fourths of the states. The use of a national convention to propose an amendment has never been used.
Most of the twenty-seven amendments have expanded democracy in the U.S. The amendments can be broadly grouped into those dealing with constitutional processes, voting rights, taxes, and Prohibition.
The Founders required the two-step process of adding amendments that ensures both national and state approval. The fight over the Equal Rights Amendment (ERA) shows the difficulty in reaching national consensus among the states. The amendment received 35 states' approval but failed to attain the needed 38 and later several states voted to rescind their earlier approval.
Great changes have occurred in the Constitution through interpretation by the federal courts, mainly the Supreme Court. Through the use of judicial review as established in Marbury v. Madison (1803), the Supreme Court can declare laws of the Congress and actions of the president unconstitutional. The court's interpretation of the Constitution has established some of the most important liberties such as:
1. equal protection under the law even at the state level
2. the end of segregation in Brown v. Board of Education of Topeka (1954)
3. a women's right to choose an abortion in Roe v. Wade (1973) and
4. every person's vote should be weighed equally in Baker v. Carr (1964).
Presidential and Congressional action has also changed the Constitution. Thomas Jefferson purchased the Louisiana Territory in 1803 despite the lack of constitutional authorization. Congress has attempted to limit the power of the president to commit troops overseas through the passage of the War Powers Act (1973) after the Vietnam War. Finally, custom and practice change the constitutional system, as did the emergence of political parties (not mentioned in the Constitution) in the early years of the republic
Chapter Objectives
After mastering the concepts in this chapter, you will be able to
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