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Chapter 2: The Constitution CHAPTER CONTENTS The Articles of Confederation National Government Weakness State Government Democracy The Constitution The Constitutional Convention Features of the Constitution Motives of the Founders Ratification of the Constitution Changing the Constitution Evolution of the Constitution Early Conflicts The Civil War and Reconstruction The Great Depression and the New Deal A Combination of Constitutions Conclusion: Does the Constitution Make the Government Responsive? SELECTED SPECIAL FEATURES SECTION Talking Points American Diversity: Founding Mothers Is the Senate Democratic?


Full file at LECTURE IDEAS AND SUGGESTED ACTIVITIES In Chapter Two, the U. S. Constitution is the focus of discussion. The authors (1) consider the events (mostly on the national and state government levels) recommending the replacement of the original Articles of Confederation, (2) identify the challenges confronting those attending the constitutional convention in 1787, (3) recreate the dynamic atmosphere in which the new document was crafted, (4) explore the main features of the new constitution, (5) interrogate the motives of the Founders, (6) use the ratification process to identify controversial provisions of the new governmental framework, and (7) capture the ingenuity of the framers who crafted a changeable document that has withstood the test of over two centuries. The chapter concludes by asking, “Does the Constitution Make the Government Responsive?” The Articles of Confederation In 1776, the British settlers living in America declared their independence from the mother country in order to become self-governing, an act that precipitated a six-year war with Great Britain and the Americans’ first attempts at nation-building. The previous efforts at selfgovernment at the colonial and state levels did not necessarily prepare governmental leaders for the challenge of managing an entire country. The first attempts at constructing a governmental framework resulted in the Articles of Confederation (1781), in effect until 1789. The Articles failed because the document did not create an arrangement requisite for meeting the needs of the new nation, especially a country whose economic viability and national security were unstable and uncertain. In essence, the Articles failed to create a central authority sufficiently powerful to solve the problems the nation confronted during the 18th century. As a “confederation,” most authority was left with the states. While a unicameral Congress could pass laws, in the absence of a national judiciary and an executive branch, each state had the authority to decide whether to enforce and how to interpret national laws. While Congress under the Articles was given a number of important powers and duties, a delegation of nine states had to agree before these powers could be exercised. This meant that while Congress could declare war or levy taxes, it had no independent means to enforce its decisions. Moreover, many important powers, such as the authority to regulate commerce, were given to the states. The shortcomings of the new document became immediately evident after the war of independence when the new nation was faced with an enormous debt that it could not pay because the states refused to approve increased taxes. Moreover, the economic integrity of the nation was compromised in the absence of uniform laws regulating commerce and insuring stable money, sound credit, or enforceable debt collection. Shay’s Rebellion became a further symbol of the dangers of empowering the states in the economic area. Too, the new nation could not establish the military force necessary to protect the country from “foreign threats” (from Great Britain, Spain and the Barbary Pirates) in the absence of state support. In essence, the Articles of Confederation failed because the national leaders of the new nation were not sufficiently empowered to overcome the obstacles legally imposed by the states. Suggested Student Activity


Full file at The failure of the Articles of Confederation raises interesting questions about human nature. The most important is why can’t people just get together and work out their differences without having to rely upon the authoritative force of government? Why did the states resist the levying of taxes when the integrity of the nation depended upon paying off the war debt? Why did the states rebel against supporting the funds to create a national military force from which they would benefit? The obvious conflict here is between self (private) interest and the common (public) good. The Constitution The men who met in Philadelphia in 1787 to “amend” the Articles of Confederation individually had experienced the disadvantages of the governmental arrangement that was originally created. They were bankers, merchants, creditors, land speculators, manufacturers and wealthy farmers, i.e., economic and social elites. With one exception, yeomen farmers, women (see American Diversity: Founding Mothers), African-Americans and Native Americans were notably absent from the convention, yet the decisions made there would seal their fates as well. Fortunately, the Founders were also educated and thus enlightened to the benefits of democracy. The Founders were attentive to John Locke’s prescription that a government governs best when the governed consent. Features of the Constitution A fun and informative way to introduce students to the drafting of the Constitution is to discuss it within the context of the challenges of nation-building, whether during the 18th century in America or the 21st century in Africa, Asia, the Middle East or the Balkans. In essence, the Founders responded to four major challenges: (1) what type of government to create; (2) how to create a government sufficiently strong to overcome the weaknesses in the Articles of Confederation but not so strong as to pose the threat of tyranny; (3) how to determine what goals or ends the government should strive toward; and (4) how to create a government sufficiently flexible to respond to changing needs but not so malleable as to create instability. (1) What Type of Government? In responding to the first challenge, the nature of government, the conflict was over how democratic the new system ought to be. The Founders opted for a republic. This is a good place to introduce the Federalist Papers, discuss their purpose, and use Federalist Paper No.10 (see the Appendix) to delineate the argument in support of a Republic. A balanced discussion juxtaposes the Founders’ fear of mass tyranny (and undemocratic features such as the Electoral College, in addition to the practical concerns that democracy raises in a large country) with the democratic features of the Constitution. Of these democratic features, elections (that secure some degree of popular sovereignty and institutionalize the core values of majority rule and minority rights) are the most obvious. Notice, however, that those leaders directly elected by the people (such as members of the House of Representatives) serve for the shortest periods of time, two years; while those furthest removed from the people (federal judges and justices) effectively serve for life (“good behavior”). None of these arrangements is a coincidence.


Full file at (2) How Strong a Government? The second major challenge was how to create a government sufficiently strong to overcome the shortcomings of the Articles of Confederation, but not so strong as to pose the threat of tyranny. The Founders were concerned as much with tyranny by the government as tyranny emerging from among the people (tyranny of the majority). To guard against governmental tyranny, the Founders created a government in which legitimate powers (the essence government) are limited, checked, decentralized, separated and distributed; i.e., fragmented. As James Madison notes in Federalist Paper #47, “[T]he accumulation of all powers —legislative, executive and judiciary—in the same hands may justly be pronounced the very definition of tyranny.” Thus, powers first were separated (separation of powers). In Federalist Paper #51, Madison asserts that “[T]he greatest security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Then powers were checked and balanced (checks and balances). Powers were further divided between the national and state governments (federalism); and, within the branch feared most, Congress (bicameral). To further guard against tyranny, the Founders institutionalized conflict by having members of the House of Representatives, the U.S. Senate, and the Presidency (and federal courts to a lesser extent) representative of and thus responsive to different constituencies. From the perspective of the Founders, conflict would promote bargaining and consensus-building that would result in compromise policies partially satisfying everyone and thus discouraging rebellion. The Founders then moved to unify the country through a single chief executive and by strengthening the powers of the federal government and formally assuming federal supremacy over the states. In the first case, the Founders created a president sufficiently strong (in powers and tenure) to pull the nation together during crisis periods (Lincoln and the Civil War, FDR and WWII), but not so strong as to become a tyrant or dictator (checks and balances, Electoral College). In the second case, Congress was given the powers to regulate foreign and interstate (and by extension intrastate) commerce, in addition to standard domestic, national security and foreign policy powers. Finally, the “supremacy clause” establishes the constitutional presumption that in governmental conflicts, the national one is supreme, thus placing the legal burden on a state(s) to prove otherwise. (3) The Goals or Ends of Government? The third challenge was to delineate goals or ends towards which the new government would strive that would be sufficiently compelling to secure public support. Unless the new government could provide benefits to the people that they otherwise could not secure individually, there was no rationale for a common authority. This view, attributed most notably to John Locke, formed the foundation of the Founders’ view of the Constitution as establishing a social contract between the people and government. The preamble to the Constitution commits the government to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure … liberty,” i.e., fair treatment, security, prosperity and freedom. In what ways is the Constitution crafted to insure the actualization of


Full file at these benefits? What constitutional mechanisms are available to the people to seek redress when these benefits are not secured? Suggested Student Activity According to John Locke, individuals would not voluntarily relinquish their natural rights (such as liberty) and submit to an external authority without gaining substantially from the arrangement. Thus, a citizen’s relationship to government can be described as a contractual one in which we agree to give up certain rights and privileges (such as speeding in a school zone, playing loud music at midnight, allowing our dog to wander the neighborhood, expressing ourselves artistically on the side of the corner grocery store, or killing someone who has harmed us) in return for certain benefits (such as affordable education, which, given economies of scale, the government can better provide) and comforts (such as personal safety). A useful activity is to engage the students in a discussion of government as a social contract. Questions to consider include the following: What rights and responsibilities do I have as a citizen? What sorts of things am I not allowed to do? What does government provide me in return for obeying its laws, paying taxes and performing military service? Is my relationship to my government truly a reciprocal, balanced and, thus, fair one? (4) How to Create a Resilient Government? How to create a document both sufficiently flexible to be viable for decades, but not so malleable as to create the conditions for governmental instability, was the final challenge. For one, the Constitution includes an elaborate and cumbersome process for amending the document that makes change possible but difficult. Secondly, the brief and ambiguous language of the Constitution allows the document to be interpreted in ways that comport with changes in public opinion. For example, Congress has the “elastic clause.” The President is empowered to “make sure that the laws are faithfully executed.” The 14th Amendment cautions the states against denying equal protection to their citizens. Each of these clauses has been the subject of various interpretations throughout the decades by the courts, the president and members of Congress. Suggested Student Activities Ask the students to assume the role of nation-builder and respond to the challenges of crafting a document creating a viable system of government. What form of government would they create? Why? What would they expect the government to accomplish, and does the constitution they crafted offer the means for realizing these things? What rights and responsibilities are the people expected to have? Finally, what would they do to insure that their nation would have longevity, surviving longer than 50 years? During the discussion of nation-building, students should be guided in drawing upon a vision of human nature in justifying the governmental arrangement they have constructed, as was done by the Founders. In contrast to the Founders’ rather pragmatic and pessimistic view of human nature (“If men were angels, no government would be necessary”), Locke’s vision of man as naturally gregarious and other-regarding could be introduced.


Full file at A second activity concerns evidence of compromise in the Constitution, in particular the decisions to count five slaves (“other persons”) as three people for purposes of taxation and representation (“Three-fifths Compromise”), and create a bicameral legislature modeled on the Connecticut plan (“Great Compromise”). Ask students whether they would be willing to compromise strongly held values and beliefs (such as tolerance and equality) for the sake of governmental integrity. Which values would they be most unlikely to compromise? Motives of the Founders The authors ask whether the Founders were “selfless patriots, sharing their wisdom and experience” or “selfish property owners, protecting their interests.” The answer is both. Viewed through the lens of Charles Beard, the Constitution secures the property rights of the privileged while institutionalizing a subordinate role for the less privileged. Moreover, several provisions of the Constitution protect property (see Constitutional Provisions Protecting Property). But the Constitution also guards against tyranny and secures a modicum of democracy. Moreover, the promise of a bill of rights protecting our natural and inalienable rights was a prerequisite for the Constitution’s successful ratification. Suggested Student Activity Have the students speculate as to the motives of the Founders in drafting the Constitution. Consider the socioeconomic status and ideological dispositions of the Founders. Then ask the students to interrogate their own motives, having previously engaged in nation-building. Ratification of the Constitution Despite the efforts of the Founders to resolve contentious constitutional issues through compromise prior to the ratification process, the document encountered opposition. Those who supported the Constitution called themselves Federalists, and they called their opponents AntiFederalists. In the end, however, Anti-Federalists had no alternative plan, and the Constitution was approved. Changing the Constitution In this section, the authors illustrate how the formal (amendment process/judicial interpretation) and informal (political practice) mechanisms available for changing the Constitution have been used to promote the democratization and nationalization of the American government. Of the 27 amendments added to the Constitution, the majority advance citizenship rights and/or increase federal powers, patterns supported by judicial interpretation and political practice. Evolution of the Constitution The Constitution has evolved significantly over the years. The Supreme Court became the principal arbiter of the Constitution in the early 1800s, and its decisions gave authority to the


Full file at national government that the Constitution did not appear to give it. Later, the Civil War and the Great Depression had profound effects on the contours and content of the U.S. Constitution. The Gettysburg Address and The Reconstruction Amendments established a moral and legal commitment, respectively, to racial equality and the “the vision of a unified nation.” Political and legal reaction to Roosevelt’s New Deal established the basis for a large, activist federal government and expanded the concept of equality to include a certain quality of life. Together, these and other historical events effectively “remade” the Constitution. The effect is “competing visions” of what principles should guide the nation. Conclusion: Does the Constitution Make the Government Responsive? The authors ask us to consider whether a constitution written to construct a government to solve 18th century problems is still viable in the 21st century. In particular, can a government in which powers are wildly fragmented avoid political stalemate and ensure accountability? Suggested Student Activity Students can discuss the question posed in the conclusion. For those who consider the system unworkable, ask them how they would go about effecting change. Be sure they understand the requirements and consider the viability of the amendment process, judicial interpretation, and political practice. How do they feel about a new document, and what would have to transpire for the Constitution to be replaced? SELECTED SPECIAL FEATURES SECTIONS Talking Points Many citizens in our country today think of the Founders as religious men who built the country on religious principles. As the text points out, however, the founding fathers were more secular than religious in their beliefs. Suggested Student Activity Ask students what role they think religion should play in the governing of our country. How important is it that elected officials be members of a religion? Which religion? Any religion? Why? American Diversity: Founding Mothers In this feature, students are reminded of the substantial contributions that women made during the Revolutionary War and throughout America’s history that effectively have been ignored by scholars until recently. Students are challenged to consider the paradox of women’s continuous active political involvement and the belated granting of political rights to them. Is the Senate Democratic?


Full file at The authors raise two intriguing questions regarding the U.S. Senate. What would happen if the “rationale” used to justify the equal representation of the American states in the U.S. Senate was applied to minority interests such as African Americans or Native Americans? And what sustains the “undemocratic Senate” in light of the historical pattern of amendments toward increasing democratization?


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