The Making of the Constitution: Framing and Ratifying the New Government

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The Making of the ConstitutionFraming and
Ratifying the New Government

• Teaching American History
• Year II, Lecture 2

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Key Points of Todays Lesson

• The Constitution was a product of careful
  thought, painful experience, and political
  compromise
• It was a brilliant document with one fatal flaw
  the compromise over slavery
• The ratification campaign rested as much on savvy
  organization as on persuasive argument

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Key Points of Todays Lesson

• Historical perspective on three important
  Constitutional issues
• Was it a radical experiment in democracy or an
  antidemocratic reaction to democracy?
• What are the dangers of originalism as an
  interpretive model?
• Whose right to bear arms did the second amendment
  protect?

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The Constitutional Convention

• Philadelphia, May-September, 1787
• The framers
• Points of agreement
• Larger national government with power to tax and
  regulate trade
• Supremacy of national government over states
• National executive and judiciary

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The Starting Point

• Madison and the Virginia Plan
• Bicameral legislature
• Apportioned by population
• Lower house elected by people
• Upper house nominated by states, elected by lower
  house
• Limited veto over state laws
• President appointed by Congress, limited veto
  over state and national laws
• Judges appointed for life

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Points of Contention

• Big States vs. Little States
• The New Jersey Plan
• Unicameral legislature with equal representation
  by states
• But conceded to separate branches, power to tax,
  and supremacy of national government
• The Great Compromise
• Bicameral legislature
• Lower house apportioned by population, elected by
  people
• Upper chamber apportioned equally, elected by
  state legislatures

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Points of Contention

• The power of the executive
• How many, how long, how elected, how much power?
• Madison elected by Congress enforced national
  laws, veto over national and some state laws
• NJ Plan elected by Congress committee or
  individual one term only enforced laws,
  appointed officials, commander-in-chief
• Hamilton elected by electors life term
  absolute veto.
• Compromise individual four-year terms elected
  by electors with process left to the states top
  two candidates become president and vp,
  respectively (amended 1804)

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Points of Contention Slavery

• The war and slavery
• The Constitution and slavery
• Three-fifths Compromise
• Continuing the slave trade
• The Fugitive Slave Clause

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Principles of Government

• Seven principles of republican government
  embodied in the Constitution
• Popular sovereignty (people are the ultimate
  authority)
• Republicanism (representative government)
• Checks and balances (at multiple levels)
• Separation of powers (three branches)
• Federalism (national and state governments)
• Limited government (whatever that means)
• Individual rights (guaranteed in Bill of Rights
  and elsewhere)

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The Constitution of 1787

• A product of compromise through and through
• Its implications worked out in numerous
  controversies during the early national era
• A brilliant document with one major compromise
  that nearly doomed it slavery

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Ratification

• Federalists vs. Anti-federalists
• The Federalist advantage in organization
• National network
• Trusted leaders
• Controlled media

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The Ratification Debates

• Is the Constitution anti-democratic and
  counter-revolutionary?
• Anti-federalists yes, and it will lead to
  aristocracy
• Federalists true threat to liberty is too much
  democracy
• Can republic exist on a large scale?
• Anti-federalists no, for factions will tear it
  apart
• Federalists the more factions, the more checks
  and balances
• Will the new government infringe on liberties of
  people?
• Anti-federalists yes, and we must have a bill of
  rights.
• Federalists no, but they consented for
  ratifications sake
• Ratification and the Bill of Rights

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Historical Perspective The Radicalism of the
Constitution

• Was it a radical experiment in democracy or an
  antidemocratic, counter-revolutionary reaction to
  democracy?
• Compared to Confederation and many state
  governments, it was a retreat from the Revolution
  and driven in large part by the desire to protect
  property (creditors)
• Compared to other western forms of government, it
  was a radical departure in its insistence on
  popular sovereignty, representation, contractual
  arrangement, liberal assumptions, notions of
  society.

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Historical Perspective The Dangers of Originalism

• Should original intent guide our interpretation
  of the Constitution?
• Some say yes, and that any departure from
  original intent is judicial activism.
• But there are problems with originalism
• Cant understand intent through abstract ideas,
  but through ideas filtered by experience
• Which framers? Constitution was a political
  document produced through compromise.
• Whose intent? Framers? Ratifying conventions?
  How do we understand this? Notes? Federalist
  Papers? Debate proceedings?
• Framers, ratifiers, and leaders who applied
  Constitution were not of one mind. There were
  multiple intents.

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Historical Perspective The Second Amendment

• A well regulated militia, being necessary to the
  security of a free State, the right of the people
  to keep and bear arms, shall not be infringed.
• Was the second amendment aimed primarily at
  protecting the states against a federal standing
  army, or protecting individuals rights to gun
  ownership?
• It was a collective right intended to provide for
  a well-regulated militia, and is now obsolete.
• The right to individual gun ownership was assumed
  and did not need to be spelled out.