2302+Spring+2009+Week+Three


 * The Legislature: Historical Background.**

The institutions of American government were not built from scratch in Philadelphia during the summer of 1787. By and large they were based on institutions created in Britain, which themselves trace ancestry -- at least in theory - back to the Roman Republic. In this section I want to get comfortable with how the Legislature was affected by a specific episode in British history - the conflict between the Stuart monarchs - and how that conflict influenced colonial attitudes about the proper role of a legislature in a Republic.

In this section we will trace the history of legislatures from the group of barons who forced King John to sign the Magna Carta, through the development of the British Parliament, to the conflict between Parliament and King Charles the First (which led to the later's execution), the Glorious Revolution, the establishment of colonial legislatures and the attempts by King George to minimize their power.


 * Timeline:**

1215: [|Magna Carta] signed by King John. He is forced to recognize rights held by the barons and freemen, respect due process and accept the rule of law. 1265: [|The Great Council]expanded to include not only barons, but knights and burghers from every borough in Britain. 1295: [|The Model Parliament] summoned by Edward the First. Edward used parliament as a way to sort out grievances from his subjects in order to prevent rebellion. 1341: [|The Commons] begins to meet separately from the nobility and clergy. 1544: [|The House of Lords]becomes formalized and the modern two chambered [|parliament] is established. 1619: [|Virginia House of Burgesses] established. 1628: [|The Petition of Right]. 1629 - 1641: [|The Eleven Year's Tyranny]. 1634: The Puritans Leave for America. 1640: [|The Short Parliament]. 1640-1648: [|The Long Parliament]. 1641-1651: [|The English Civil Wars]. 1651-1653: [|The Rump Parliament]. 1682: [|Pennsylvania Provincial Assembly]established. 1686-1689: The [|Dominion of New England]. 1688: [|The Glorious Revolution]. 1689: The [|English Bill of Rights] signed by William and Mary. 1754: The [|Albany Congress] convenes. 1760 - 1820: [|King George III]reigns. 1765: The [|Stamp Act Congress]. 1774: The [|First Continental Congress]. 1775: The [|Second Continental Congress]. 1776: The [|Declaration of Independence]. 1781: [|The Articles of Confederation]. 1781 - 1789: The [|Congress under the Articles of Confederation.], [|Congress of the Confederation]

Lecture students should use these to guide their readings and prepare for the quiz.
 * Study Guide Questions.**

1. What was the significance of Magna Carta? 2. What specific limits place on King John in the Magna Carta have survived through to the Constitution? 3. What use might a legislature be to a king? 4. What rationale did the Rump Parliament use to execute King Charles? 5. How did the English Bill of Rights impact the relationship between the parliament and the monarchy? 6. Which parts of the English Bill of Rights have been incorporated into the Constitution? 7. What was the purpose, respectively, of the Albany, Stamp Act, First and Second Congresses? 8. What was the significance of the dissolution of the Virginia House of Burgesses? 9. Which grievances in the Declaration of Independence focus on the rights of legislatures? 10. What deficiencies in the Continental Congress led to the Constitutional Convention?


 * Written Questions for Fall 2009 Online Students:**

You'll need at least 150 words to answer each question.

1. Using the links above, trace the creation and development of the British Parliament. 2. The English Civil Wars were essentially fought between the forces of the Parliament and the monarchy over the relative powers of each institution. Describe the nature of the dispute and what exactly was decided once Parliament won the war. 3. Prior to the American Revolution, a series of congresses were held that attempted to coordinate the actions of the colonies in response to the attempts of Britain to establish greater control over the colonies. What were these congresses and how successful were they? 4. The Articles of Confederation are generally held to have been a failed attempt to establish a national government due to the large degree of control the states continued to have over the actions of the national government. This is reflected in the design of the Congress the document creates. Review this design and describe how it limits the actions of the national government.

See the syllabus for due date.

In this section I'll try to cover 550 years of governing history in a handful of paragraphs. To make this remotel;y possible, I'll focus on a narrow component of this story: The selective evolution of the role of legislatures and their relationship with the executive power, from Magna Carta to the Declaration of Independence and the Continental Congress.

A word about executive power is in order here before we begin. At one point in history, concentrated governing power in the hands of an autocrat was all that existed. Often the autocrat also claimed divinity, which meant that the secular and religious power was all wrapped up in the hands of one individual (Egyptian Pharaohs and Roman Emperors for two examples). To reject the authority of the autocrat was in essence to challenge a god. Good luck to you if you did.

As far as I know, no British King ever claimed to be a god, though claimed to [|God's lieutenant on earth]. They did claim absolute rule, though they were often unable to secure it. [|King John]is one example. His power was checked by the united force of his barons who were motivated by his abusive taxes, among other things. United, they were able to force the king to recognize certain rights and, perhaps most importantly, form a legislature (see paragraph 61, of the Magna Carta). Once the document was signed, the barons had the institutional authority to check the power of the king. [|Read the text here]. Other limitations imposed on the king included the right of [|habeas corpus], which can be inferered from paragraphs 36 - 40.

(You might get a kick out of this bit from [|The Lion in Winter]. Peter O'Toole plays Henry II, the father of King John -- who is the wimpy guy who runs out of the room towards the end of the scene.)

By accepting limits on his power, the king effectively placed himself beneath the law, and since it was an assembly of barons that forced him to do it, a legislature in a sense, the legislative power begins the process where it can establish what the law is. To the degree that the law was based on the will of forces outside the control of the monarch (we can't quite say it was based on the people yet) the king no longer held a privileged rank in the social order. This marked a significant change in the relationship between political powers in Britain. Given the role of the Roman Catholic Church at that time, whatever was true for the king would also be true for the pope. As a result [|the pope at that time]effectively annuled the document and it receded into the background.

Not all monarchs were opposed to legislatures. Edward I called up the [|Model Parliament] partly as a way to quell potential rebellion. This reminds us that people that are unable to have their grievances addressed through governing institutions often do so instead through more violent means. Allowing representation allows the monarch -- or whatever governing authority exists -- to dissipate hostile feelings. His example was not taken up by later monarchs. Magna Carta was ignored and forgotten for several centuries, though rumors persisted of "[|ancient rights and liberties]." These rights were slowly revived, primarily by members of a [|Parliament] that is slowly strengthening in power. [|Sir Edward Coke] was one of the driving forces behind the revitalization of Magna Carta.

Ironially, the growth of Parliament as a forced can be traced back to the liberties enshrined in the Magna Carta. In Paragraph 13, London is specifically granted the following: //The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.// This makes London and other cities were something like a free trade zones, which ensured that business people would be able to prosper. This they did, and their increasing material wealth gave them leverage turn this into political strength.

- For More background on the influence of Magna Carta on the American Constitution read [|Magna Carta and its American Legacy].

The British Parliament, which would later serve as a model for the United States Congress, was -- and still is -- bicameral and composed of a House of Lords and a House of Commons. [|The House of Lords] is just that, and institution composed of the British nobility, and originally the clergy as well. It originally served to advise the king, but slowly developed into an effective institution on its own, and even surpassed the power of the king during periods when a weak monarch ruled. By the 14th century, [|the House of Commons]was established and was composed of representatives (knights and burgesses) from the various counties and boroughs across the country. Originally it was the weakest of the political institutions, but as the wealth of cities grew, so did the influence of their representatives in the House fo Commons. Though each institution was originally established to simply approve new taxes imposed by the king, Parliament developed the power to petition for grievances from the king.

By the early 1600's the British Paliament could revive the idea that it was guaranteed rights and powers over the monarch. This became critically important as the first of the Stuart Monarchs claimed the power to tax without consent of Parliament, and detain suspected enemies without due process. [|The Petition of Right]was presented to King Charles by Parliament in 1628 to reinforce the idea that only Parliament could levy taxes, habeas corpus still applied, and standing armies could not ne kept among the people in times of peace. Charles' attitude towards Parliament was imperious. Due to the rules of the time, the monarch was able to call the parliament in and out of session at will, and Charles would do so as it suited his needs. This culminated in the perido of [|Personal Rule], also called the Eleven Years Tyranny, where Charles prevented Parliament from meeting, meaning that he cld rule with impunity.

In response, once Parliament met again, its members had grown increasingly agitated with the King and wished to try him for high treason. A variety of reasons were offered, but ultimately the King was accused of not recognizing that he was beneath the law. At [|his trial] he asked "I would know by what power I am called hither. I would know by what authority, I mean lawful [|authority]." Existing law did not give Parliament the authority to try him for treason (as it would later not give the colonies the legal right to declare independence). He went to the chopping block in 1649 still claiming the Divine right to rule.

- See the [|Long Parliament] for more information about how Parliment moved against Charles I. - [|List of Regicides of Charles the First].

The execution of Charles the First therefore was a grissly way to make a point. The executive power is beneath the legislature power, the reason being that the legislature is more closely connected to the general population, which was increasingly being regarded as the ultimate source of authority in political society. The execution of Charles however was followed by turmoil and the rule of [|Oliver Cromwell]. By 1660 the monarchy was restored. This fact reminds us of one of the reasons why strong executive authority is sometimes given approval, It helps keep the peace. The price is often a loss of individual liberty, but that is a price many are willing to pay to avoid the random chaotic violence that accompanies civil wars.

The conflict regarding the relative powers of the monarchy and Parliament continued. The subsequent Stuart Monarchs (Charles II and James II) also claimed divine right to rule. James II ( a Catholic) exacerbated ongoing religious conflicts by not only being tolerant of the religion, which was despised by members of Parliament, by hiring Catholics into positions of power within the army. The last straw was his fathering of a son in 1688 which led the Protestant parliament to fear that Catholic rule was about to descend on Britain. Parliamentary supporters in The Netherlands deposed King James II (he fled) and reinstated the monarchy under William and Mary. This was the [|Glorious Revolution].

William and Mary could not gain the crown until they agreed to certain conditions listed in the [|English Bill of Rights]. ([|See the text here]). This is as crucial a document as Magna Carta because it sets into law the relationship between the legislative and executive authority that is largely embodied into our Constitution. A review of the text of the document also reveals language very similar to what we would later see in the Declaration of Independence. In other words, the Parliament's articulation of why the rule of James II was illegitimate would later give to the colonists in the Second Continental Congress (and also the Texans' in the 1836 Convention) a list of reasons why they could argue that pre-existing governing authority was illegitimate, and that they had the right to overthrown it.

Here are some of the restrictions on monarchic power written in the English Bill of Rights that we will later see in the Declaration of Independence, Constitution, or the Bill of Rights:


 * //That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;//
 * That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
 * That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
 * That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
 * That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
 * That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
 * That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Aside from providing the opportunity to work out conflicts between executive and legislative authority, the perido of civil war in Britain also diverted attention away from the colonies, who then had to get used to the idea of self rule. Though never given official authority by the crown, colonial legislatures began to evolve and soon became seen as the legitimate authority. Efforts by King George to usurp the power of these legislatures and simultaneously increase the power of the British Parliament over the colonies -- despite their not being represented in that assembly -- would become a key instigator of independence.

Naturally, since each colony was established independently, they each had their own separate identity. Until the actions of King George provided the colonies an incentive to organize with each other, a measure of suspicion defined the relationhsips between them. They often each saw their relationship with Britain as more important than their mutual relations. This became problematic when certain common concerns like threats from the west (the French and Indians Wars) required common action. A request that the colonies create some mutual organization ended in failure (the Albany Plan) and the British, as we know, took matter in their own hands and sent troops over and imposed taxes on the colonists to pay for them.

This created a common concern with these British policies which did in fact begin a process where the colonies began to meet in a series of congresses (Stamp Act, First and Second Continental Congresses) where the colonies began discussing how to respond to these policies. After attempts to reconcile with the British, the Second Continental Congress made the decision to rebel, and justified it -- as noted above -- in language drawn from the Magna Carta and the English Bill of Rights. In essence, the colonists were claiming for themselves the same ancient rights and liberties that the barons and the members of parliament has claimed for themselves previously. By usurping the rights of the colonial legislatures (in addition to the executive and judicial entities) the king was attempting to establish tyrannical rule.

- Read the [|Declaration of Rights and Grievances], produced by the Stamp Act Congress. - Read the [|Petition to the King (1774)], produced by the First Continental Congress.

The grievances in the Declaration of Independence which pertain to complaints about the king's encroachment on legislative powers are interesting to analyze in comparison to prior documents. Here is the list:
 * //He has refused his assent to laws, the most wholesome and necessary for the public good.//
 * // He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them. //
 * // He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only. //
 * //He has called together legislative bodies at places unusual uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.//
 * //He has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people.//
 * //He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining, in the mean time, exposed to all the dangers of invasions from without and convulsions within.//
 * //He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.//
 * //He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.//
 * //He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation://
 * For imposing taxes on us without our consent;
 * For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies;
 * For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;
 * For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

In essence the colonists were accusing King George of violating the traditional rights that legislatures enjoyed. The proper response was that these legislatures represented subsidiary units and were not on the same level as either the monarch or parliament, but that did not matter to the colonists.

Once independence was established, the colonies turned into states and has to develop their own legislatures. In many cases the legislatures were opened to classes of people (artisans, poor farmers) who were previously not able to represent themselves. The policies they passed were beneficial to them, but not necessarily to the wealthier, mercantile and plantation interests. This conflict woudl eventyually escalate and lead to the calling of a convention to address this alleged defect.

Also after independence was established, the Second Continental Congress had to turn its attention to what type of government was going to exist in the new country, or perhaps more properly, what type of governing system was going to bind the seperate sovereign entities that were not only independent from Britain, but also independent from each other? Considering that a war had just been fought against a monarch, pains were made to not allow a similar fate for the new states. The political participants of the time understood the classical argument that democracies tend to deteriorate into anarchy first, and tyranny next. They opted to avoid this fate by not allowing any institutional foundation for a national executive. Only a legislature was established at the national level, and it was a very weak one at that.

The Congress under the Articles of Confederation was directly connected to the states. Teams of delegates were sent by the states to meet in annual session (one year terms) and the delegates could be recalled to the states at any time in that year and replaced. Many decisions had to be made by supermajorities and sometimes unanimously. A small handful of states, or even one, could derail any policy that might be beneficial to the nation as a whole. The lack of a national executive meant that the states could not be compelled to implement national laws, or comply with national treaties. State legislatures could negate national laws. After all they were the supreme power so why shouldn't they?

But certain problems persisted, many concerning the inability of the document to provide a venue where disputes between the states could be solved. Commercial disputes were key among them. Conflicts over trade on and control of the Potomac River led to two early conferences -- Mount Vernon and Annapolis -- which attempted reconciliation. The failure of the later was taken as an indication that the Articles were insufficient to provide for the general welfare and common security of the growing nation.

The Constitutional Convention was called in order to address these defects, but as we know, did not simply modify the Articles. It created in stead a new system of government with the bicameral Congress with significant delegated powers over the country as a whole. Partly this was a result of the mechanism used to determine who would be a member of the convention. The mercantile interests and planter interests dominated here far more than they did the Second Continental Congress which produced the more egalitarian Declaration of Independence. Their original intent was actually to negate the ability of states to influence national policy by having the national legislature represent the people of the United States directly. The bicameral system where a Senate continues to represent the states was a product of a compromise with the few people at the convention that wanted the states to hold onto some power.

In each of the steps above, decisions were ultimately made by groups of individuals with legislative power. The same is true of the decision to ratify the Constitutions. The decision was made by ratifying conventions held in the separate states. The decision to use conventions, and not the state legislatures was driven by the belief that the later would be less likely to ratify the document at all.


 * Additional Sources:**

[|The Roman Senate]. [|The Political Institutions of Ancient Rome.] [|Populares.] [|The British Parliament]. [|List of Parliaments]. [|Magna Carta.] [|Charles 1st] - [|The Petition of Right] - [|Eleven Year's Tyranny.] [|The Glorious Revolution]. Wikipedia: [|Glorious Revolution.] Wikipedia: [|English Bill of Rights]. [|Colonial Government in the 13 Colonies.] [|The Virginia House of Burgesses]. Grievances in [|the Declaration of Independence](see below) The [|Congress under the Articles of Confederation.] Wikipedia: [|The Articles of Confederation]. Wikipedia: [|Congress of the Confederation] [|British Civil Wars].


 * Assignments (for Spring 2009):**

Lecture Students: We will have small (maybe ten - fifteen questions) multiple choice quiz on Jan 28th or 29th. Here are a few items to help you along as you do your readings:

- Think about the role that assemblies have played in reducing the power of the executive - Why was Charles 1st executed? - What were the circumstances that led to the abdication of James II and the placement of William and Mary on the British throne? - Be able to outline the concessions the monarchy made in the Declaration of Rights. - What types of grievances are made in the Declaration of independence regarding legislative power? - What type of Congress was designed in the Articles of Confederation?

Internet Students: Write 150 words on each of the following topics: 1 - How did the Glorious Revolution allow the British Parliament to assert rights over the British Monarchy? 2 - Many of the grievances listed in the Declaration of Independence involved efforts by the King of England to usurp and control colonial legislative power. Outline these grievances and speculate about what these grievances suggest about the role the legislature is to play in governance. 3 - The Congress under the Articles of Confederation was argued to be remarkably weak. How did its design make it so?

Internet students, get this to me by Friday Jan 30th. Email it to me, Microsoft Word or pasted into the email.


 * Written Questions for Summer 2009 Online Students:**

1. Look at these three documents -- the Magna Carta, the English Bill of Rights, and the Declaration of Independence -- and determine what specific limtations on power are common to each. (you'll need at least 300 words to answer this one) 2. Why was King Charles the First executed? How has his execution conditioned the relationship between legislatures and executive bodies? 3. What were the similarities and differences between the Albany, Stamp Act, First and Second Congresses? 4. Discuss the importance of the specific grievances listed in the Declaration of Independence regarding legislative power.

Unless otherwise noted, you'll need at least 150 words to answer each question. Due midnight June 21st.

From the Declaration of Independence, the grievances related to legislative power: