AP US Gov Confederation and the Constitution Notes

9/20/11

Aim:  To examine the first government of the US and to explain why it failed

v Confederation

¨     A system of government where the states/provinces have more power than the central government (to prevent tyranny)

Ø  Federalism is a sharing of power between the national government and the states that we have today.  The opposite of a confederation is a Unitary Government where the central government has all the power

¨     Critical Period 1781-1789

Ø  The time that we had the Articles of Confederation

¨     Weaknesses

Ø  National government could not levy taxes

 How did it get money then? Borrowed/asked for money from the states

Ø  To amend the articles you needed all 13 states to agree and 9/13 to change/make a law

Ø  States could coin their own currencies

Ø  National government could not regulate interstate commerce (trade between states)

 States would be in trade/tariff wars

¨     Shay’s Rebellion

Ø  Revolutionary War soldiers were in debt and were going to lose their property so they prevented the courts from meeting so the judges couldn’t take away their land

Ø  National government did not have an army to put it down, and Massachusetts didn’t have a state militia, so they hired a private army to stop the rebellion

Ø  Founders were always worried about tyranny coming from a strong central government, but they forgot that tyranny could also come from the mob if the central government was not strong enough (which is what happened in Shay’s Rebellion).  This motivated the founders to meet in Philadelphia and create a stronger central government

v Constitutional Convention

¨     They came to revise the articles, but instead they just threw out the Articles and wrote a new Constitution

Ø  Some viewed this as a coup d’etat because they did not have the right to create a new constitution and get rid of the old one

Ø  The counterargument is that the new constitution was sent back to the states to ratify

¨     Issues à Conflict

Ø  Big states vs. Small states

Ø  Representation

Ø  Unsettled land

Ø  Manufacturing industrial north vs. agricultural and slavery south

¨     Compromises

Ø  The Great Compromise

 Created a bicameral legislature (2 houses)

 House representation was based on population and the Senate had two representatives per state

Ø  The 3/5’s Compromise

 The southern states wanted to count their slaves towards representation, but the north said they don’t have any rights why are they counted as people

 Every 5 slaves will count as 3 people for the purposes of representation and taxation

 Some people refused to sign the constitution because of slavery

Ø  The Slave Trade Compromise

 Slavery remains an institution protected by the constitution

 After 20 years the federal government would have the option of ending the import of slaves from Africa (no new slaves).  The government did exercise this option to force slaveholders to treat their slaves better

Ø  The Commerce Compromise

 Southern economy was based on exporting goods to other countries (cotton, agricultural products)

 The government cannot tax exports from state to state or from state to a foreign country (protects southern plantation owners)

 Central government had the right to regulate interstate commerce (benefit for the north) (Interstate Commerce Clause)

¶ (Gibbons vs. Ogden- issue over waterway control in NY.  Ogden got a permit from NY for exclusive use of his steamships in NY’s waterways.  But Gibbons got a permit from the federal government to use his steamships in NY waterways.  Supreme court ruled in favor of Gibbons- NY can’t give one person a monopoly because that will harm free trade)

¶ This clause has been used more than any other clause/power to increase the influence of the national government

9/21/11

¨     Finalized the constitution and sent it to the states for ratification

Ø  Delaware was the 1^st state to ratify the constitution

¨     Federalists and Anti-federalists

Ø  Federalists wanted the constitution ratifies

Ø  Anti-federalists were against ratification

 Thought the national government was too strong

 Didn’t want the courts to be independent (wanted the people to vote for judges)

 Southerners were concerned that slavery would be abolished by the national government because it was so strong

 Wanted the constitution to be religious in nature.  Offended by the preamble that it said “We the people” and not “G-d” (not all anti-federalists believed this)

 The biggest thing the anti-federalists feared was that there was no bill of rights (guarantee of liberties and restrictions on government)

¶ Why didn’t the federalists put it in the constitution in the first place? 

Ø  Each state had its own constitution that guaranteed civil liberties

Ø  The government can only do what’s listed in the constitution.  If you list what the government can’t do, does it mean the government can do whatever is not listed?  Putting in a bill of rights might allow the government to take away other rights

Ø  Certain rights are already protected by the constitution

§  Habeas corpus

§  Prevents a bill of attainder

§  Prevents ex post facto- can’t punish someone for doing a certain activity when it was legal

9/23/11

v Federalist #10- Madison

¨     Faction- a group of people whose interests are adverse to everyone else’s, and they try to influence/dominate the government (today they are called interest groups). 

Ø  Factions are dangerous because factions brought down every free society in the past

Ø  They are still necessary and cannot be taken away

 Taking away factions takes away liberty and freedom

 Getting rid of factions is impossible because you can’t have everyone have the same opinions- it goes against human nature.  Different opinions = factions 

 Most importantly, the main source of factions is unequal distribution of property.  Everyone has different jobs and owns different amounts of property which create different opinions and lead to factions

Ø  To deal with factions control them

 A small direct democracy- this was rejected by Madison because it is easy for factions to dominate.  Also, factions are based on our passions which are constantly changing, so a direct democracy is controlled by people and their opinions are constantly changing à chaos

 Create a large republic where a lot of factions are created so no faction has an advantage (different factions will cancel each other out- prolife vs. prochoice etc).  Also, representatives will filter the passions of the people, who will put their passions aside for the good of the country

 Minority factions will be outvoted, and majority factions will have difficulty imposing their ideas on everyone in a large country

·      “Extend the sphere [the size of the country] and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.” Hard for one idea to pervade the union, maybe a state or a localty, but not an entire nation.

o   In the end, “a republican remedy for the diseases most incident to republican government.”

9/26/11

v Federalist #51

¨     Auxiliary precautions = separation of powers so government can check itself

Ø  Government has to be set up to check itself to deal with factions

Ø  Balance of responsibility between people and government

Ø  You need government, but you also need to control it

¨     Checks and Balances

Ø  How does Congress check the president?

 It controls funding so it can freeze funds to the executive branch

 Congress can override the president’s veto with a 2/3 vote in both houses

 Congress can impeach (House impeaches by charging the president with a crime and the Senate can put the president on trial, and kick out the president if the president is found guilty) a president

 (The president’s power comes from public opinion and politics- the president can call the media and get air time whenever he wants)

Ø  How does the Congress check the Courts?

 Senate must confirm any judges appointed by the president

 Can impeach judges

9/27/11

¨     Legislative branch was meant to be the most dominant

Ø  à Split the legislative branch in half

Ø  Different modes of election for both houses (House every 2 years because it is directly connected to the people and Senate every 6 years)

Ø  House represents districts and Senate represents whole states, so they have different roles which won’t create tyranny

Ø  Different powers

 Senate confirms all presidential appointments (federal judges and top cabinet positions)

 Senate can ratify treaties

 Any bill dealing with revenue and taxation has to start in the House

¨     To maintain separation of powers, one branch of government cannot have too much control over picking the members of the other branches

Ø  Resolution: people should pick the members of every branch.  However this is not practical (people should not pick federal judges so they’re not influenced by politics and opinion.  Also, people at that time were not informed enough to pick the president because they didn’t have TV or radio to learn about the issues)

Ø  People choose representatives for the House, and the House chooses Senate members

Ø  Electoral College choose president

 People voted for the state legislature who would choose electors who would then choose the president and vice president (the state legislature process was not written in the constitution)

 Left the people out of the process- the masses voted indirectly

 This was the last thing agreed on at the convention

10/3/11

Aim: How power is distributed in the government

v Powers in the government are delegated by the constitution

¨     Delegated- powers are specifically given with not much flexibility

¨     Expressed powers- specific powers given to congress (Article I Section 8)

Ø  *Levy taxes

Ø  Borrow money

Ø  *Regulate trade

Ø  Coin money

Ø  Declare war

Ø  Raise and army

Ø  *To make all necessary laws- Elastic Clause/ Necessary and Proper Clause- allows congress to make laws to help it carry out the expressed powers.  These powers that come from this clause are called implied powers because they are not explicitly written.  This gives the government a lot of its power

 Examples:

¶ The draft- Congress has a right to raise an army, and through the implied powers congress got the right to create a draft

¶ The IRS- congress has the right to collect taxes, so the government created an agency to carry out collecting taxes

¶ Federal Reserve- created through the implied powers to hold borrowed money

¶ Minimum Wage- right to regulate interstate commerce à laws of minimum wage

 Anti-Federalists feared this power would be abused by the government

 This clause is necessary because the constitution couldn’t write down all the powers of the government

¨     Inherent powers- powers not listed in the constitution that the government should obviously have because every government has them (common sense)

Ø  Acquiring territory (example- Louisiana Purchase.  Jefferson was a strict constructionist and wanted to stick to the constitution word by word and use the elastic clause limitedly, yet he was the one who bought Louisiana.  The opposite of a strict constructionist is a loose/broad constructionist.  They wanted to go crazy with the elastic clause and interpret the constitution loosely.  Led by Hamilton)

Ø  Immigration- there is nothing in the constitution about regulating immigration, but it’s common sense that the country has to regulate who gets to come in

¨     Limits on Congress (Article I Section 9)

Ø  Can’t deny habeas corpus

Ø  No Bill of Attainder or ex post facto

Ø  No titles of nobility

¨     National Powers (exclusive powers- powers of only the national government)

Ø  Coin money

Ø  Regulate trade

Ø  Declare war

Ø  (Handout)

¨     States

Ø  Limits on the States (Section 10)

 Can’t sign a treaty

 Can’t coin money

 No Bill of Attainder (denies someone access to the courts) or ex post facto

 Can’t grant nobility

 States can’t tax one another

Ø  Power of the States (Bill of Rights 10^th Amendment)

 Any power neither delegated to the national government nor denied to the states are powers of the states (reserved powers)

 Powers of both the states and the national government are called concurrent powers (eminent domain, taxing, courts)

10/4/11

v The Amendment Process

¨     2/3 of Congress for proposal and ¾ of states for ratification (super majorities- need more than just 51% which makes it hard).  The president has no formal role in amending the constitution, he does have an informal role, however, and can put pressure on the people or congress to propose an amendment

¨     Proposal can happen in 2 ways

Ø  2/3 of the 435 in House and 2/3 of the 100 in Senate vote to propose

Ø  2/3 of the states ask Congress to hold a national convention to debate/propose an amendment (this has never happened before, but it is a way of giving the states a say- federalism)

¨     Ratification

Ø  Need ¾ of the states (38 out of the 50 states)

Ø  Usual has a time limit for ratification

Ø  Methods of ratification

 ¾ of the state legislatures would have to ratify it (every amendment except the 21^st has gone through the state legislatures)

 Ratifying conventions- an election in each state to vote for delegates to hold a convention to debate the amendment and vote on ratification.  ¾ of these state conventions have to ratify (this was used only to repeal prohibition)

Ø  Congress writes in the proposal which method of ratification will be used

¨     An amendment is the best way to check the courts, because the courts are obligated to follow the constitution

Ø  If there is an amendment against gay marriage, then the courts can’t legalize it

¨     The only thing that cannot be amended is that no state can be denied equal suffrage in Senate without its permission (they can’t make one state have 1 senator instead of 2)

v Interpreting the Constitution- Beard vs. Brown

¨     Beard- the people at the Constitutional Convention were protecting their own interests

Ø  Trying to protect their property, bonds (strong national government is needed for people to get their bond money back from the government), and security (Shay’s rebellion)

Ø  The founders created a strong national government to protect their own interests, not state interests

Ø  Beard’s analysis is Marxist because he is analyzing this historical event in an economic way

Ø  Believed the convention was a coup

¨     Brown

Ø  Beard did not look at the primary sources closely- critiquing Beard’s faulty methods.  Also, Beard went in with a certain opinion and looked at the evidence in that way, instead of being open-minded

Ø  Protecting property is a faulty argument because at that time everyone owned property, even small farmers, and therefore would fear mob rule

Ø  Beard thought it was undemocratic and that the people should have voted for delegates to the convention.  Brown responds that the articles said that the state legislatures can pick those people, and the constitution would be ratified by the states and people in the end anyway

¨     Wilson

Ø  The delegates represented the interests of the states, not their personal financial interests

Ø  Some rich people voted against the constitution

Ø  Slave owners and delegates from slave states made sure the constitution approved of slavery

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