9/20/11
Aim: To examine the first government of the US and to explain why
it failed
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Confederation
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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
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Critical Period 1781-1789
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The time that we had the Articles of
Confederation
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Weaknesses
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National government could not levy taxes
How did it
get money then? Borrowed/asked for money from the states
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To amend the articles you needed all 13 states
to agree and 9/13 to change/make a law
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States could coin their own currencies
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National government could not regulate
interstate commerce (trade between states)
States
would be in trade/tariff wars
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Shay’s Rebellion
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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
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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
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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
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Constitutional Convention
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They came to revise the articles, but instead
they just threw out the Articles and wrote a new Constitution
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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
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The counterargument is that the new constitution
was sent back to the states to ratify
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Issues à Conflict
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Big states vs. Small states
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Representation
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Unsettled land
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Manufacturing industrial north vs. agricultural
and slavery south
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Compromises
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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
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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
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Finalized the constitution and sent it to the
states for ratification
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Delaware was the 1st state to ratify
the constitution
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Federalists and Anti-federalists
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Federalists wanted the constitution ratifies
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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)
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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
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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
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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
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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).
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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
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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
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Auxiliary precautions = separation of powers so
government can check itself
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Government has to be set up to check itself to
deal with factions
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Balance of responsibility between people and
government
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You need government, but you also need to
control it
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Checks and Balances
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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
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Legislative branch was meant to be the most
dominant
Ø
à
Split the legislative branch in half
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Different modes of election for both houses
(House every 2 years because it is directly connected to the people and Senate
every 6 years)
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House represents districts and Senate represents
whole states, so they have different roles which won’t create tyranny
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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
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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)
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People choose representatives for the House, and
the House chooses Senate members
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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
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Powers in the government are delegated by the
constitution
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Delegated- powers are specifically given with
not much flexibility
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Expressed powers- specific powers given to
congress (Article I Section 8)
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*Levy taxes
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Borrow money
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*Regulate trade
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Coin money
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Declare war
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Raise and army
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*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:
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The draft- Congress has a right to raise an
army, and through the implied powers congress got the right to create a draft
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The IRS- congress has the right to collect
taxes, so the government created an agency to carry out collecting taxes
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Federal Reserve- created through the implied
powers to hold borrowed money
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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
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Inherent powers- powers not listed in the
constitution that the government should obviously have because every government
has them (common sense)
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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)
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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
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Limits on Congress (Article I Section 9)
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Can’t deny habeas corpus
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No Bill of Attainder or ex post facto
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No titles of nobility
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National Powers (exclusive powers- powers
of only the national government)
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Coin money
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Regulate trade
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Declare war
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(Handout)
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States
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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
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Power of the States (Bill of Rights 10th
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
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The Amendment Process
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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
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Proposal can happen in 2 ways
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2/3 of the 435 in House and 2/3 of the 100 in
Senate vote to propose
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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)
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Ratification
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Need ¾ of the states (38 out of the 50 states)
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Usual has a time limit for ratification
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Methods of ratification
¾ of the
state legislatures would have to ratify it (every amendment except the 21st
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)
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Congress writes in the proposal which method of
ratification will be used
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An amendment is the best way to check the
courts, because the courts are obligated to follow the constitution
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If there is an amendment against gay marriage,
then the courts can’t legalize it
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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)
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Interpreting the Constitution- Beard vs. Brown
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Beard- the people at the Constitutional
Convention were protecting their own interests
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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)
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The founders created a strong national
government to protect their own interests, not state interests
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Beard’s analysis is Marxist because he is
analyzing this historical event in an economic way
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Believed the convention was a coup
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Brown
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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
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Protecting property is a faulty argument because
at that time everyone owned property, even small farmers, and therefore would
fear mob rule
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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
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Wilson
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The delegates represented the interests of the
states, not their personal financial interests
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Some rich people voted against the constitution
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Slave owners and delegates from slave states
made sure the constitution approved of slavery
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