The United States Constitution


Power Points:


This week we cover both the United States and Texas Constitutions. A constitution is a set of rules that outline the basic structure of a government and generally includes an outline of the design of its institutions and its basic powers and limitations. Constitutions, at least since the ratification of the American Constitution, tend to be written out, but some, notably the British Constitution are not, and are simply the embodiment of the organic development of governmental institutions. As we will see, the nature of a constitution's design has ramifications for how power is distributed in society. Fights over both constitutional language and how that language is subsequently interpreted are reflections of this struggle. In American history this struggle boils down to those who want power concentrated at the state level, and those who want power at the national level. In the text below I'll outline the nature of this struggle and how the Constitution ratified in 1789 is best seen as being an uneasy compromise between these two camps.

We will also look at the Texas Constitution as well as the nature of state constitutions. State constitutions tend to be longer than the national constitution and Texas is no exception. Only Alabama has a longer constitution. Alabama's constitution is so long because municipal governments do not have home rule authority. Any law affecting cities must be passed by the state legislature. Texas' Constitution allows home rule authority, but as with other states, additional clarity is needed in order to specify how the state's reserved powers will be enacted, including descriptions of some of the agencies that carry out these laws. Much of the language in the Texas Constitution focuses on restrictions of power, not enhancements of it. These descriptions increase the document's length.


Study Guide for Lecture Students:
  • Be able to describe the basic design of the Articles of Confederation. What was the dominant entity?
  • What problems did the Federalists have with the Articles of Confederation?
  • What was the purpose of the Annapolis Convention? Why did it fail?
  • According to the records of the Annapolis Convention, what was the purpose of the constitutional convention?
  • Founders like Elbridge Gerry argue that the Articles of Confederation were excessively democratic. What they mean?
  • What system of government did Hamilton propose to the convention? Describe its features.
  • What features of the Virginia Plan minimized the role of the states in the national government?
  • How did the New Jersey Plan strengthen the power of the states?
  • What was the Great Compromise?
  • How is slavery handled in the Constitution?
  • What was the purpose of the constitution's Preamble?
  • What does the phrase "full faith and credit" mean?
  • What does the phrase "privileges and immunities" mean?
  • Explain how amendments are added to the Constitution.
  • Explain the rationale behind the supremacy clause.
  • What is the difference between a royal, corporate and proprietary charter?
  • What are some of the general differences between state constitutions and the U.S. Constitution?
  • What is Jacksonian Democracy and what does it tell us about the nature of the constitutions written for the western states?
  • Texas had a number of constitution prior to the ratification of the current constitution in 1876. What factors led to the drafting of each constitution?
  • How are the powers of the institutions of Texas government restricted even more than those of the national government?


Introduction
In order to set the stage for the disputes we will cover below, a quick overview of the divisions in colonial society at the beginning of the revolutionary era is in order. Historians argued that there were three distinct groups, roughly equal in size, that had different views on the revolution. The Loyalists, who tended to hold royal office or have some connection to British institutions in America, supported Britain throughout the revolution. After the war was over, many of these individuals left the country, many fled north to Canada. Their interests were tied into the continued authority of the British government and once the ties to that government was severed their interests lie elsewhere. A second group, composed of small scale farmers, artisans and shop-keepers, supported and pushed revolution from the start. They saw little personal benefit in British rule and were the most put off by the imperious nature of the British presence and affected greatly by the taxes imposed on them without the benefit of representation.

The third group held the balance of power. These were the merchants and large scale plantation owners. Their interests were tied into their ability to engage in trade. Business transactions can only occur in a society where there is a solid currency, and the financial system that goes with it, a military and police apparatus that can protect these transactions, plus a judicial system that can provide a forum where commercial disputes can be resolved. As long as the British government was providing these services, then the groups were wary of independence. Once one declares independence one has to replace these institutions, which is a difficult thing to do. The task of the small scale farmers etc. was to persuade the merchants to side with them and support revolution. The decision to engage in the Boston Tea Party was an effort to push the British to over react, which they did, and hit the merchants in the pocket book. Once the British closed eastern ports and prevented commercial transaction from going forward, there was little reason for this group to continue supporting British rule. This foreshadows a fundamental dispute between the small scale farmers, artisans and shopkeepers -- who would become the Anti-Federalists and later the Democrat Republicans -- and the merchants and plantation owners -- who would become the Federalists. Should a national government exist with sufficient strength to establish the commercial and military institutions that would provide the foundation for a commercial republic? Or should all these powers be left to the states, even if it means that there is no effective way to coordinate state activity?

The Articles of Confederation

The first working constitution of the newly formed United States was established loosely by the Second Continental Congress, and the Congress served essentially as the national government until it was replaced in 1781 by The Articles of Confederation, which created, as the name implies, a confederation. A confederation is defined in the document as a governing system where "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." In order to accomplish this "the said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever."

Only one institution is actually created in by the document, a Congress that represented the states only. This is not too surprising considering that the colonists had acquired a healthy fear of national power and especially national executive authority over all the states. This was existed under British rule and the authors of the Articles choose to not replicate that design. The legislative branch was generally considered to be the most legitimate of the governing institutions since it had the closest connection to the people. Its design is outlined in Article 5. Here is a small part of the text:

  • For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.
  • No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

This design does not allow for effective representation since it ties delegates firmly to the preferences of the states. The colonists also has a strong connection to their state governments, and within each state were individuals whose continued success depended on the preservation of state power. This coupled with increased conflict between them led to an increasingly ineffective system that could not reconcile the increasing disputes that were emerging. States could tax commerce over their borders, refuse to recognize currency, and compete among each other for foreign trade. This was intolerable to the Federalists, like Alexander Hamilton, who wanted a strong commercial republic, though it was fine for those who preferred small scale agrarian republics, like Thomas Jefferson. In Hamilton's opinion the design of the Articles left the United States vulnerable to foreign powers and incapable of developing itself.


The "Failures" of the Articles of Confederation and the Annapolis Convention.

One's opinion on the success of the Articles of Confederation depended largely on whether ones interests were being protected or hurt by the document. To those who had positions of power in state governments the articles helped solidify those positions. The legislatures were also more "radical" meaning that they were more likely to be controlled by lower classes who felt harmed by the financial crisis which followed the Revolutionary War. Efforts to use paper money to pay off debts were opposed by Federalists who saw this as undermining the financial solidity of the nation. But they were in no position to do anything about it. Executive control rested with the states. Neither could they effectively coordinate the actions between the states. Conflicts over commercial relationships between the states led to conferences which attempted to reconcile those differences.

Early conflicts included navigation issue and fishing rights on the Potomac River. Four states border the river, which makes it ripe for conflict. In order to settle disputes a conference was held at Mount Vernon at the invitation of George Washington. The Mount Vernon Conference was argued to be a success and could have set a model for how future disputes between states could have been resolved, but a second such effort, Annapolis Convention, failed. The intent of the meeting was to work out uniform regulation of commerce, though not enough representatives from the states to get anything accomplished. It was decided that the weakness of the governing system made it impossible to find a solution that could in fact be implemented regardless so the organizers called on the states to send representatives to a meeting the next summer in Philadelphia to discuss broad issues related to the defects of the articles.

From the Report:

"That there are important defects in the system of the Federal Government is acknowledged by the Acts of all those States, which have concurred in the present Meeting; That the defects, upon a closer examination, may be found greater and more numerous, than even these acts imply, is at least so far probable, from the embarrassments which characterize the present State of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Council's of all the States. In the choice of the mode, your Commissioners are of opinion, that a //Convention of Deputies// from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference from considerations, which will occur, without being particularized."

In brief, these were the complaints made by the Federalists about the Articles of Confederation:
  • It could not deal with internal dissent effectively. As an example they used Shay's Rebellion, a debtors' revolt in western Massachusetts
  • It did not allow the United States to effectively negotiate treaties with foreign nations because they were able to negotiate separately with the states and play them off each other.
  • It undermined the ability of the nation to protect itself from foreign threats because there was little reason to believe that the states would unite behind a foreign force of they were not compelled to do so.
  • State legislatures were dominated by debtors who engaged in inflationary policies to make it easier to pay off debts, but by doing so undermined the stability of their currency.
  • Trade between the states was undermined by the various currencies used by states, and the ability of states to tax items imported from other states.

The Anti-Federalists argued against many of these points and suggested that the Federalists were exagerating each of these points, but the Federalists were able to persuade the states to send delegates to consider revisions to the Articles.

The Constitutional Convention

The Constitutional Convention was held from May 25 to September 17, 1787 in Philadelphia. Though called upon to modify the Articles, the participants rewrote the Constitution from scratch and created a significantly stronger government than had existed previously. The participants of the constitutional convention were different than those of the Second Continental Congress which was responsible for the Declaration of Independence. They were generally wealthier and more aristocratic and less trusting of anything that smacked of democracy. Elbridge Gerry stated a commonly held belief by the participants that the problems they were there to solve arose due to the excesses of democracy, and therefore could not be solved by expanding democratic participation. The following page contains demographicinformation about the participants in the convention. Note that only eight people signed both the Constitution and the Declaration of Independence. The composition of the convention famously caused Patrick Henry to declare that he smelled a rat and leave. He feared that the assembled would be prone to establish a monarchy. He would become a leading anti-federalist.

The precise intent of the participants at the meetings has been a source of controversy. The records of the Annapolis Convention state the following purpose of the convention:

"...to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.

This suggests that the intended purpose of the meeting was to revise the articles, not replace it completely. As soon as the Virginia Plan was presented it became apparent that a complete revision was in the works. It also suggests that the states would have an opportunity to confirm whatever changes were made in the convention, but this again would not happen. Members of the convention made it a point to ensure that ratification would happen in state conventions that were less likely to be controlled by forces opposed to the finished product.

A few general points about the convention:
  • George Washington was the presiding officer. His participation was considered essential for the success of the convention
  • The proceedings were held in secret in order to allow participants to speak freely.
  • Madison's convention notes were not published for fifty years following the convention.
  • In order to facilitate ratification, only a super majority of states were required to ratify it. A key weakness of the Articles of Confederation was the requirement that certain decisions be made unanimously.
  • Rhode Island did not send delegates, to the relief of many since they were felt likely to be disruptive, but eventually became the last state to ratify the document.

Links:

The Federalists and Hamilton's Plan.

It cannot be emphasized too much that the Constitutional Convention was not supported by universally by the American population. It was conceived and dominated by the Federalists. These were the same elites, merchants and lawyers who had been the slowest to support independence. Their support for Britain was both principled and self-interested. Principled in the sense that they believed that the British governing system had evolved into the best that had best been devised. It provided both individual liberty and social order. This was a difficult trick. But the preservation of public order also ensured a continuation of their privileged positions in society. One of the unfortunate consequences of the Articles of Confederation in their eyes was that it unleashed a "leveling spirit." Democratically controlled legislatures were passing laws that interfered with their commercial interests. The articles were not conducive to their interests, so they sought a new system that would rectify this structural deficiency principally by establishing strong national institutions, principally an executive, and barriers between the population and the law.

Hamilton's position is worth pondering. Unlike many other founders, he emigrated to the United States and was not attached to any of the individuals states. He had an elite education in New York, a center of commerce, and became a close adviser to Washington at a very young age and was with him during the early years of the Revolutionary War. In that position, Hamilton became frustrated with the decentralized nature of the war efforts and the inability of states to adequately fund the war. He was inclined to see the states as obstacles to effective government. The Constitutional Convention provided an opportunity to create a national government that circumvented the states and created a direct connection between the national government and the people.

He proposed a plan in the convention that would have radically changed the relationship between the national and state governments. It had no chance of passage, but is worth understanding since it gives us an idea of what sorts of proposals were prefered by some participants. I've copied the text below from usconstitution.net. These are the basic features of Hamilton's design:
  • A bicameral legislature
  • The lower house, the Assembly, was elected by the people for three year terms
  • The upper house, the Senate, elected by electors chosen by the people, and with a life-term of service
  • An executive called the Governor, elected by electors and with a life-term of service
  • The Governor had an absolute veto over bills
  • A judiciary, with life-terms of service
  • State governors appointed by the national legislature
  • National veto power over any state legislation

This plan would obviously reduce the states to something on the order of counties.

- Avalon: The text of Hamilton's Plan.
- Hamilton's Plan.

The Virginia Plan

James Madison was responsible for introducing the first serious complete proposal for a new plan of government. The Virginia Plan was introduced by Edmund Randolph on May 29, 1787 and provided the first indication that the convention was set to completely replace the Articles of Confederation with a new document (find further information here, and here). Again with apologies to usconstitution.net, here are their bullet points for the Virginia Plan:
  • A bicameral legislature (two houses)
  • Both house's membership determined proportionately
  • The lower house was elected by the people
  • The upper house was elected by the lower house
  • The legislature was very powerful
  • An executive was planned, but would exist to ensure the will of the legislature was carried out, and so was chosen by the legislature
  • Formation of a judiciary, with life-terms of service
  • The executive and some of the national judiciary would have the power to veto legislation, subject to override
  • National veto power over any state legislation

As with Hamilton's plan, it would effectively eliminate the influence that states had over the national government, as well as give powers to the national government over the states. The states have no independent authority over the national government, the people elected the lower house and all other institutions were effectively selected by them. This was compounded bythe fact that each institution proportionately represented the states, which gave greater weight to the larger states. The veto power over state legislation was especially problematic for states, since that reduces their autonomy considerably.

The New Jersey Plan

William Paterson was one of many delegates from smaller states that were concerned about what the Virginia Plan would do to their ability to protect themsleves from the larger states. During a two day recess after the Virginia Plan had been introduced he and other delegates from small states met to draft the New Jersey Plan, its features are:
  • The current Congress was maintained, but granted new powers - for example, the Congress could set taxes and force their collection
  • An executive, elected by Congress, was created - the Plan allowed for a multi-person executive
  • The executives served a single term and were subject to recall based on the request of state governors
  • A judiciary appointed by the executives, with life-terms of service
  • Laws set by the Congress took precedence over state law

The states would still retain power under this arrangement, though some additional national features were established. The Congress had more actual strength and national executive and judicial branches were established. Note the weakness of the executive however. It was composed of a multiple persons and the executives could be recalled by the state governors.

The Great Compromise

The bicameral legislature, with a House of Representatives representing the people and the Senate representing the states, was reached as a result of a compromised worked out by Roger Sherman.

Slavery and the Three-Fifths Compromise

Though the word "slavery' is never mentioned in the Constitution, it is referred to three separate times in the document.

In Article One, Section Two:
- Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

In Article One, Section Nine:
- The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

In Article Four, Section Two:
- No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Slavery was perhaps the issue most likely to cause the convention to fall apart. An abolition movement had swept through the northern states and some members held rigid positions against slavery. Nevertheless the importance of union ultimately led opponents to yield to the demands of delegates from the slave states.

The three fifths compromisewas especially controversial because it strengthened the position of southern states. Many early presidents were elected from southern states simply because of the increased strength in the electoral college it gave their candidates.

The Basic Principles in the Constitution

As we read through the document, note how the following basic principles are established in the document

- Popular Sovereignty: This is established by the phrase "We the People" in the preamble. By claiming that "the people" have the authority to establish a government, they are then placed in control of it.
- Indirect Democracy: This can also be called Republicanism. This results from the electoral systems established in each of the first three sections. We cover these in depth when we discuss Federalist #51.
- Separated Powers Enforced with Checks and Balances: The fact that the three powers of government are vested in three separate institutions described in each of the opening three articles establishes the separated powers. The powers given to each branch over the other two establish the checks and balances.
- Federalism: The relative powers and influence of the national and state governments are dealt with primarily in Article One. States are given control over the Senate, and bypassed in the House. Section Eight of Article One delegates certain powers to the national government, Section Nine places limits on the powers of the national government while Section Ten places limits on the state governments. Article Four clarifies the relative obligations the states have to each other, and presumably places the national government over them as a referee. Article Five allows the states to play a role in determining whether an amendment can be added to the Constitution. Article Six clarifies the powers the national government has over the states, primarily by declaring the national law is the supreme law. The part of the Constitution supporters of states' rights most often refer to as establishing the autonomy of the states, the Tenth Amendment, was not part of the original Constitution.
- Individual Liberty: This is a controversial point, but it can be easily argued that individual liberty did not become part of the Constitution until the addition of the Bill of Rights after its original ratification. The Bill of Rights specifically limits governmental power in order to establish individual freedom. The text in the body of the Constitution contains some similar language, most notably Article One, Section Nine's prohibition on Congress' ability to suspend the writ of Habeas Corpus and to pass ex post facto laws and bills of attander.

Brief Summaries of Each Section

The Preamble

Here is the Preamble in its entirety:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This is a simple enough and even poetic justification for the constitutional enterprise, but it was quite controversial in its day. Note the opening phrase "We the people." This phrase upset proponents of state power because it placed the national government on par with the states. The Articles of Confederation begins with the following phrase:

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

This is hardly poetry. It simply states, matter of fact, that delegates of the several states created a confederated government. Nothing is stated about the purpose of the government, and certainly no claim is made that the national government has any connection to the people. Only the states do, and for that reason the states are the stronger entity. The national government only existed to do those things that were considered of consensual benefit to the states. By claiming to be a product of "we the people" the authors of the Constitution cleverly bypassed the authority of the states and based the national government on the same foundation as the states.

Note that the document justifies the establishment of the national government for six specific reasons.

1 - To form a more perfect union:
2 - Establish justice:
3 - Insure domestic tranquility:
4 - Provide for the common defense:
5 - Promote the general welfare:
6 - Secure the Blessing of Liberty to ourselves and our Posterity:

Article 1: The Legislative Branch

The first three articles of the Constitution establish the separated powers. Each article establishes a distinct institution which is then vested with one of the three powers of government: the power to make, executive and adjudicate the law. The first, and primary power, the power to make laws was given to Congress, which was also the branch most closely connected to the population. This allowed the national government to escape the criticism lobbed at the British that they were passing laws, especially those concerning taxes, without the consent of the governed. Congress is the branch through which consent is granted or negated.

The design of the legislative branch, as mentioned above, was a subject of controversy in the convention. Who ever, or whatever, was to be represented in Congress would be the dominant entity in America. Perhaps the most significant outcome of the Great Compromise, which negotiated an agreement between the different camps, was the bicameral Congress which represented, separately, the people of the United States, and the states. The House of Representatives was designed to connect the general population to the national government, but since it was also likely to be prone to the mob mentality the founders thought inevitable in democracies, the House was to be checked by the Senate, which was intended to reflect the interests of the elites in each state. Though much of the language of the first Article, and the Constitution in general, is vague and focused on process, some specific powers are granted and denied to the Congress, and by extension the national government. The specific powers of government can be found in section 8. Following the desires of the Federalists, these powers tended to be commercial and military, both of which were essential for trade. The restrictions placed on the states in section 10 are generally intended to ensure that the states cannot interfere with nationally established commercial powers.

- Wikipedia: Article One of the Constitution.
- Findlaw: Article One of the Constitution.

Article 2: The Executive Branch

As with "We the people" and the House of Representatives, Article 2 marks a radical change from the Articles of Confederation. There was no national executive under the Articles. This was due to the fear most people had about any concentrated executive authority. It was a reasonable fear considering the efforts of King George III to use his executive power to consolidate his control over the North American colonies. If concentrated executive power was allowed in the U.S. a similarly ambitious individual could also consolidate power and the republic could crumble into despotism.

This was no abstract concern, in fact it was to be expected. Given the opportunity consolidate power, leaders tend to do so. But here was their dilemma. Without sufficient executive power, internal and external strife would increase, anarchy and civil was would ensue, and the people would be willing to trade arbitrary violent freedom, for a peaceful, if despotic tyranny. History provided many examples of this choice being made. Despotism could occur as a result of the establishment, or the lack of, executive power. The solution was two fold. First, the executive had to be separated from, and limited by, the other branches. This included a unique way to elect the executive, through an electoral college that was separate from other institutions as well as the general population. Ironically, history demonstrates that the general population can be seduced by demagogic dictators. A direct election of a president may well produce such a ruler. An electoral college composed of elites was considered more likely to produce a ruler with sufficient virtue to do the job he was elected to, while resisting the temptation to become tyrannical.

This leads to the second solution to the problem of executive power, and is purely happen stance. Historians argue that the executive branch was designed with expectation that George Washington, who presided over the Constitutional Convention, would hold the office. Washington was held out to be an example of the type of individual that would not be tempted by power. He had resisted attempts to make him king following the end of the Revolutionary War, which led other founders to believe that he could not only be trusted with power, but use his powers in a limited manner that would provide an example to other presidents about how to hold the office.

- Wikipedia: Article Two of the Constitution.
- Findlaw: Article Two of the Constitution.

Article 3: The Judicial Branch

The judicial branch also marks a departure from the design under the Articles of Confederation. There was no national court system prior to the ratification of the Constitution. A national judiciary allows for the uniform adjudication of disputes across the nation. It also minimizes the possibility that a dispute between states would not be able to be reconciled fairly since the case can only go forward in the court system of one of the states.

Aside from establishing the jurisdiction of the courts, and stating that "the judicial power is vested in a Supreme Court and such inferior courts as the Congress may from time to time ordain and establish," nothing is said about the precise design of the courts. It is all left to Congress. Which is an important point on its own. Since the courts often reconcile disputes between the government and individuals (that is in essence what a criminal case is about) and since the executive branch brings the cases forward, a conflict of interest will exist if the executive branch designs the courts. The courts will not be neutral, or independent. Judicial independence, along with competence, is a primary concern. It helps explain both why members of the judiciary are appointed (to ensure they have qualifications) and why they serve for life (so they cannot be manipulated by the other branches). It is worth noting that the primary power of the judiciary, judicial review, is not mentioned in the Constitution. Due to fears about the abuse that might occur from whoever has the power, the members of the constitutional convention thought it best to not make a hasty, and perhaps regrettable, decision. Over time it came to be held that the judiciary should have the power because they had the expertise to best use it and their lack of real power made it difficult for them to abuse it.

Also omitted is any indication regarding how the Constitution should be interpreted. This continues to be a source of controversy since some argue that the document should be interpreted narrowly, along the strict meaning of the document's language, while others argue that the loose language in the Constitution suggests that the document should be reinterpreted according to the needs of civil society at the moment. It is worth nothing that since the judiciary is the only national constitutional institution that is not elected to office, it is not considered to be one of the "political branches." When deciding what cases to hear, the court will often determine whether a specific question raised by the case is a political question, that they would then leave to the legislature and executive. If so, then they tend to avoid the case.

Wikipedia: Article Three of the Constitution.
- Findlaw: Article Three of the Constitution.

Articles 4: Relations Between the States

This article establishes, for the first time, what obligations the states have to each other. Under the Articles of Confederation, there was no authority that could compel that states to recognize any such right or obligation. But since private claims can be made by the citizens of one country on another country, there was precedence regarding what these mutual obligations should be. These are written into Article 4. It begins with the full faith and credit clause which states that the public acts, records, and judicial proceedings entered into in one state must be accepted by another. The privileges and immunities clause prevents states from giving special treatment to its own citizens under the law. States have to extradite people accused of violating crimes in another state if the executive authority of the state requests it, the same thing held true for slaves. New states can be admitted into the union, but the existing boundaries of the states must be respected. The states are guaranteed a republican form of government and are protected from invasion and domestic violence.

- Wikipedia: Article Four of the Constitution.
- Findlaw: Article Four of the Constitution.
- Wikipedia: Full Faith and Credit.
- Wikipedia: Privileges and Immunities.

Articles 5: The Amendment Process

A high threshold is established for amending the Constitution. Of the various processes listed, the most commonly used involves 2/3rds votes by the House and Senate, and ratification by 3/4ths of the states. This is a very high threshold. Only 13 states are needed to block an amendment. And though many amendments have been offered over 230 years of American history, only 27 have made the cut. In some sense however, constitutional amendments are not necessary since the courts have claimed the power to determine what constitutional language means. Whenever they consider whether a piece of legislation violates the Constitution, they clarify constitutional meaning. And since the personnel on the courts change, slowly but steadily, constitutional meaning can change as well too. As a result, what may have been struck down once because it violated the constitution, may be found constitutional latter. This being the case, constitutional amendments are not necessary.

- Wikipedia: Article Five of the Constitution.
- Findlaw: Article Five of the Constitution.

Articles 6: Prior Debts, National Supremacy, and Oaths of Office

This article deals partly with the relationship between the states and the national government. As an enticement to join, the national government assumed the debts of the states. This solidified the national government's role as the foundation of the nation's economic system. In exchange, the Article states that the laws of the nation are the supreme law of the land. There was never any question that the judiciary had the power to declare state laws unconstitutional. The only question concerned whether the subject of the law fell under the jurisdiction of the national government. in areas where the states are exercising their reserved power, the national courts will sometime -- not always -- refuse to rule because it falls outside their jurisdiction. If that jurisdiction exists, then it can go forward and the courts can deal with whether the national government should preempt the state law. We will pursue this point further when we discuss federalism, but if there is conflict between the states and national government in an area where they both have jurisdiction, the national policy takes precedence over the state policy.

The article also mandates that oaths or affirmations be taken to uphold the Constitution. Note the two terms "oath" and "affirmation." An oath is a solemn vow, generally invoking God, that something is true or promised. An affirmation is the same thing, but is taken when one wishes to avoid the religious implications contained in an oath. The final sentence in the article holds that religious tests are not required as a condition of holding office in the United States.

- Wikipedia: Article Six of the Constitution.
- Findlaw: Article Six of the Constitution.
- Wikipedia: Supremacy Clause.

Articles 7: Ratification

The body of the Constitution concludes with a brief statement concerning ratification:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Two things are worth noting. First, contrary to the promise made in the report from the Annapolis Convention requesting a convention to correct the defects of the Articles of Confederation, ratification was not going to debated by the state legislatures. These institutions were assumed to be already hostile to the document. Supporters of the Constitution reasoned that they would be more likely to have the document ratified by conventions, because they could have more influence on who went to the conventions. Also note that contrary to many requirements in the Articles of Confederation that votes be unanimous, only 3/4ths of the states were necessary to ratify the document.

- Wikipedia: Article Seven of the Constitution.
- Findlaw: Article Seven of the Constitution.

Ratification

The Constitution was signed on September 17, 1787 and the ratification process began immediately. Not all of the attendees of the Convention signed the document, mostly due to reservations that the document gave too many powers to the national government.

- Wikipedia: Ratification.

The Federalists and Anti-Federalists

The dispute over ratification led to the formation of two groups, the Federalists -- who favored ratification -- and the Anti-Federalists -- who did not. The Federalists were composed of many of the individuals who pushed for the convention and dominated its proceedings. Simplistically, these were individuals concerned about commercial interests and the ability of the states as currently organized, to properly thwart any attack against the nation. The Anti-Federalists wanted to maintain the autonomy and independence of the states. Each accused the other of being driven by self interest. The Federalists accused the Anti-Federalist of simply wishing to preserve their positions of power at the state level and preventing the nation from successfully dealing with common concerns. They argued that the nation would inevitably break into smaller, weaker sub-units if there was no overarching authority to prevent it. These smaller units would make the states, collectively, prone to foreign control.

The Anti-Federalists accused the Federalists of creating a larger stronger national government for the sole purpose of enriching themselves at the expense of others. They dismissed the arguments made by the Federalists about the need for security as scare tactics. They believed that the confederate system would be as capable as a national system to protect the nation from foreign threats. The Federalists, they argued, were persuading the citizens of the nation to swap their freedom for riches. Given time, the defects of the Articles of Confederation could be worked out. Their mutual arguments were made public in various opinion pieces published throughout the nation. The Anti-Federalists struck first and began attacking the Constitution, which led Alexander Hamilton to organize a series of articles in favor of the document. He wrote under pseudonym "Publius" in collaboration with John Jay and James Madison. The collected articles, now known as The Federalist Papers, are held to be among the more important works of political writing produced in America. Together with their counterparts, the Anti-Federalist Papers, they provide a thorough overview of the pros and cons of the Constitution.

The Federalists' organizing skills proved formidable, and though the ratification vote was narrow, the document was ratified eventually by all the states. Disputes between the two sides lingered. The Federalists would turn their pro-ratification efforts into early electoral sucess and dominate the early national government. They became the Federalist Party under the leadership of Hamilton. Goals they were unable to attain in the convention, like the establishment of a national bank, were passed in the early Congress. The Anti-Federalists would soon group under the direction of Thomas Jefferson, as well as James Madison who would eventually become more supportive of states' rights. They would form a political party in Congress called the Democrat-Republicans that would work against the Federalists.

- Wikipedia: Federalists.
- Wikipedia: Federalist Papers.
- Wikipedia: Anti-Federalism.
- WEPIN: Guide to the AntiFederalist Papers.

The Bill of Rights.

The least successful argument made against the Anti-Federalist by the Federalists concerned the original constitution's lack of a bill of rights. Such a bill would place specific limitations on the government's powers over the lives of individuals. Not all states had one, but the potential power of the national government made the Anti-Federalists fearful of what that power could be used for. The clear articulation of certain substantive (what types of laws can be passed) and procedural (how the law can be enacted) freedoms was insisted upon, and many state ratification conventions made their support for the Constitution conditional upon inclusion of such a bill. Ultimately James Madison, who saw no need for it but considered it harmless, introduced a series of amendments that would eventually become the ten amendments in the Bill of Rights.

- Wikipedia: The Bill of Rights.

The Later Amendments.

Over the course of American history additional amendments -- beyond the first ten -- have been added to the Constitution, but the high threshold for ratification has ensured that the number is very small. With only two exceptions, these amendment deal with structural features of the Constitution. Often their ratification follows a dispute which reveals a deficiency in the document's design.

The 11th Amendment affirms that states retain sovereign immunity from lawsuits from other states. The 12th altered the design of the Electoral College. The 13th, 14th, and 15th mopped up the issues which led to the Civil War, and most importantly placed limitations on how states could treat their citizens. The 16th Amendment allows Congress to levy an income tax. The 17th makes Senators subject to popular elections. The 18th Amendment made the manufacturing, transportation or sale of intoxicating liquors illegal, the 19th Amendment stated that the right to vote could not be denied due to gender. the 20th Amendment changed when presidents are sworn in. The 21st Amendment repealed the 18th. The 22nd Amendment established the two term limit for presidents. the 23rd Amendment allowed citizens in the District of Columbia to vote for electors for the president. The 24th Amendment outlawed the poll tax. The 25th Amendment cleared up ambiguity surrounding the replacement of a president with the vice-president upon death or resignation. The 26th Amendment lowered the voting age to 18 and the 27th Amendment stated that pay raises for members of Congress go into effect following a subsequent election.

- Amendments 11 - 27.

The Elastic Clauses and the Interpretation of the Constitution

- Wikipedia: Commerce.
- Wikipedia: Necessary and Proper.
- Strict Construction.
- The Living Constitution.


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Past Written Assignments:

1 - What were the deficiencies in the Articles of Confederation that led some to call for it to be revised?
2 - How did the Constitution solve those deficiencies?
3 - What features of the Texas Constitution make it different than the U.S. Constitution? Is it a better or worse system? Explain.
4 - Explain why certain groups in American society supported the Articles of Confederation and others wanted to get rid of it.
5 - Alexander Hamilton argued for a radically different constitutional plan than what was eventually ratified. How was it different? Why did Hamilton prefer his plan? How would it fulfill his objectives?
6 - Read this speech by Patrick Henry which contains his objections to the wording of the Constitution's Preamble. What exactly is he saying? Does he have a legitimate point to make?
7 - Article 4 of the Constitution attempts to reconcile disputes between the states. How? Is it successful or do lingering disputes and problems remain in their mutual relations?
8 - Fully detail the differences in the design of the Articles of Confederation and the Constitution. Explain why some groups were more likely to support the former, and other were more likely to support the latter.
9 - Detail the similarities and differences between the Virginia, New Jersey and Hamilton plans? Which seemed to have the biggest impact on the final design of the Constitution?
10 - The House of Representatives is designed to be the people's branch. What factors make it so? What other parts of the Constitution attempt to tie the national government to the people of the United States? What factors place barriers between the people and the government.
11- Article 4 of the Constitution attempts to reconcile disputes between the states. How? In your answer I want you to fully explain the concepts of "full faith and credit" and "privilege and immunities." Do you think the attempt has been successful or do lingering disputes and problems remain in their mutual relations?
12 - The Constitutional Convention was called to address the problems created by the Articles of Confederation.What were these problems? How was the Constitution a solution to them? What disputes existed over the proposed Constitution?
13 - Critically evaluate the terminology of the Constitution's Preamble. It provides vague justifications for the existence of government, what might these mean in practice? Read Patrick Henry's opposition to the language in the Preamble. Why was he opposed to it? Was right to be opposed to it?
14 - Contrast the United States and Texas Constitutions. How are they similar? How are they different?
15 -
An ongoing dispute – primarily ideological – rages concerning how the Constitution ought to be interpreted. One sides argues that constitutional language has a strict, limited meaning and ought to be interpreted narrowly. The other argues that the document was always intended to be interpreted broadly in order to allow it to be modified to changing circumstances. I want you to outline each position based on information provided to you in the readings and, more importantly, find current areas where there is disagreement over policy based on an underlying disagreement of what the Constitution means.