Constitutional Foundations--Institutions and Compromises

Constitutional Foundations:
Institutions & Compromises

Barbour and Wright, Chapter 2

Wednesday, February 11, 2009

Purpose of Government
• All governments must have power to:
• Legislate, or make laws
• Administer, or execute laws
• Adjudicate, or interpret laws
• Who had these powers under the English system?
• Who had these powers under the Articles of
Confederation?


Constitutional Crafting
• Delegates to the convention
represented varying ideals, values,
goals and interests

• The process of crafting the
Constitution was a series of
compromises between varying
interests

• Virginia Plan vs. New Jersey Plan
• Recognition that the document wasn’t
perfect, but still served founders’
democratic ideals


Separation of Powers

• “Government should be set up so that
no man need be afraid of another” —
Baron de Montesquieu

• Cannot have single person or body
exercising all three powers of
government in case of corruption

• In practice, total separation is not
possible, however; this principle is key
to the US Constitution


Checks and Balances

• Allows each of the branches to police the
others—checking abuses and balancing
powers

• What are some examples of checks and
balances built into the Constitution?

• Results in a totally new system of government
in which no branch can act independently, yet
none is wholly dependent either


Issue: Sovereignty

• Under Articles of Confederation, states held
the ultimate legal and political authority

• Many delegates only wanted minor revisions
to the Articles to preserve state sovereignty

• New Jersey Plan
• Why were states’ rights so important to early
Americans?


Compromise: Federalism
• Under federalism, the people are sovereign and
their contract with the government is the
Constitution

• The Constitution grants a national government
its own source of power while also reserving some
powers solely for the states

• Federalism also serves as an additional vertical
check and balance on governmental power

• Federalists vs. Anti-federalists

Legislative Branch

• Role in government is to legislate
or create laws

• Even with checks and balances,
Madison’s notes show that most
delegates intended for the
legislative branch to be the most
powerful

• Why?


Issue: State Representation

• Delegates from small states
wanted 1 state, 1 vote

• New Jersey Plan

• Delegates from large states
wanted the representation to be
proportional to population

• Example pg. 52


Compromise:Bicameralism
• Two houses of legislative branch (Congress)
• House of Representatives
• Determined by state population giving large states
greater representation

• Senate
• Each state allotted only two, giving small states greater
representation

• Key: Most legislation requires approval of both houses so
large & small states have to work together—check/balance


Issue: Counting Population

• Need to determine population in order to allot House of
Representatives seats

• African Americans accounted for nearly 1/4 of population
• Southern states want to count slaves in the population, but
have no intention of letting them vote

• Why did they want to count slaves?
• Northern states had far fewer slaves and argued they
should only count if they got to vote


Compromise: 3/5ths

• Although Constitutional
language is vague, it essentially
meant that non- free persons
would count as three-ﬁfths of a
person—or 3 out of 5 would be
counted

• Delegates did not tackle issue of
slavery head-on

• Why not?


Issue: Congressional
Election
• Direct democracy is not possible; delegates forming a
republic, a representative democracy

• Direct Election: Congress should be most powerful branch
and closest to the people to reﬂect their diversity

• Leads to more accountability and greater conﬁdence
• Other method of selection e.g. state legislatures
• Voters have inadequate information, can be duped
• Direct election not practical


Compromise: Bicameralism
• House of Representatives directly elected by the
people

• Greater numbers = more diversity
• Shorter terms (2 years) = more accountability
• Senate to be selected by State Legislatures
• More deliberative, non-reactive
• Nod to states’ rights


Executive Branch
• Role is to execute and administer the laws
• Delegates fearful of a strong executive
• Don’t want to create a monarch or dictator
• Some delegates wanted multiple executive-power spread out
• New Jersey Plan
• Others want a single executive-more eﬃcient
• Virginia Plan
• Issues over how best to limit president’s power

Issue: Limit Executive Power
• Delegates settled on a single executive but built in checks
on his power

• Madison: “Conﬁne and deﬁne” executive power
• Completely new position: republican executive
• Compromise: Limit power with 4-year terms
• Compromise: Advice and consent of Senate in
appointments

• Compromise: No power to declare war
• Compromise: Add vice president in case of emergencies


Issue: Presidential Selection
• Some delegates advocating for direct election
• Accountability, more democratic
• Other delegates support alternative methods of selection
• State Legislatures
• Congress (parliamentary-type system)
• States divided into voting districts, select electors
• Why not direct election?


Compromise:
Electoral College
• Each state alloted number of electors equal to
the number of Congressional seats

• Ex. Ohio: 11.4 million people = 20 EVs
Ex. Idaho: 1.3 million people = 4 EVs

• States determine how electors function
• Winner take all, electors legally bound
• Winner take all, electors not legally bound
• EVs split proportionally or otherwise


Issue: Presidential Veto
• Veto is president’s power to
override Congress

• Some want absolute veto

• Some want Council of
Revision

• Some want no veto power

Compromise: Limited veto; Congress can overturn with
2/3 vote—more checks/balances


Judicial Branch

• Role is to interpret laws and judge
whether they have been broken

• Constitution is brief and vague

• Establishes Supreme Court and
leaves inferior courts up to
Congress

• Later case law allows for judicial
review


Issue: National Judiciary
• New Jersey Plan called for no national court
system, but a continuation of the state courts
as under Articles of Confederation

• Virginia Plan calls for a national judiciary only
• Compromise: Federalism
• Federal judiciary establishes a national court
system while still allowing for state and local
courts


Issue: Judicial Appointment
• Some delegates argued that the president should be
responsible for selecting judges

• He would be held to greater accountability for bad
choices

• Others thought judges ought to be selected by Congress
• Too much power to give to a single executive
• Compromise: President selects judges, must be voted
upon by the Senate


Issue: Amendments
• Some delegates wary of Constitution because provisions
in Bill of Rights were not included

• Others argue Bill of Rights not necessary, even harmful
• Compromise: Provisions for amending the Constitution
• Proposed by 2/3 vote of Congress or a national
convention called at the request of 2/3 of state
legislatures

• Approved by 3/4 of state legislatures or ratifying
conventions of 3/4 of states


Federalists & Anti-federalists
• Eﬀort to make the Constitution as broadly
appealing as possible

• Federalists want to account for human propensity
for selﬁshness and corruption; need for larger
government

• Anti-federalists want smaller government that
will be more accountable and less corruptible

• Series of essays written by both sides arguing the
merits and faults of the Constitutional system


Ratification
• Needed 9 states (3/4) to ratify the Constitution
• Delaware, New Jersey, Georgia vote for unanimously
• Connecticut, Pennsylvania, Maryland, South Carolina
strongly support

• Massachusetts, Virginia, New Hampshire, New York
ratify narrowly

• North Carolina fails to ratify; later ratifies
• Rhode Island refused to call a convention; later ratifies

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