The American Constitution: Institutional Features and Enumerated Powers

1
The American Constitution Institutional Features
and Enumerated Powers

• The Framers Constitution as a Solution to the
  Crisis of Republican Government

2
Addressing the Problems of the 1780s Within the
Imperatives of Institutional Design

• The Constitution had to address the problems
  of the Articles of Confederation and the state
  governments 1) the impotency of the national
  government, 2) commercial warfare between the
  states, 3) their corporate aggressiveness and the
  threat of civil war, 4) violations of individual
  rights within the states, 5) the inability of the
  national government to provide adequate national
  security and establish the status of the United
  States as an equal nation within the community of
  independent nations - without violating core
  principles of republicanism, popular sovereignty,
  federalism, and natural rights.

3
Rejected Alternatives

• Monarchy and Mixed Government
• Neither consolidation nor confederation was
  possible.
• Short leash republicanism was rejected as
  incompatible with the protection of rights and
  the promotion of good government.

4

• How Does the Framers Constitution Address the
  Problems of the 1780s?

5
Problem under the Articles No Power to Compel
Taxation

• Solution in the Constitution Empower
  the National Government with the power of
  taxation. Article I, Section 8 The Congress
  shall have Power To lay and collect Taxes,
  Duties, Imposts and Excises, to pay the Debts and
  provide for the common Defence and general
  Welfare of the United States but all Duties,
  Imposts and Excises shall be uniform throughout
  the United States.
• Most delegates did not expect that direct
  taxes would be extensively used although they
  were made constitutional. Impose duties and land
  sales created the bulk of federal revenues until
  the 20th century and the imposition of an income
  tax. Neither states nor the national government
  was permitted to tax exports under the
  Constitution.

6
Problems under the Articles No power to regulate
commerce and commercial warfare between the
states

• Solution in the Constitution The Commerce
  Clause Article I, Section 8, Clause 1,3 The
  Congress shall have power . . . To regulate
  commerce with foreign nations, and among the
  several states, and with the Indian tribes. The
  commerce clause creates a national common market
  for the United States as affirmed in Gibbons v.
  Odgen.

7
Addressing the National Debt

• The United States and the states had gone over
  400 million dollars in debt to fight the
  Revolution. Almost all leaders in the nation
  Federalist as well as Anti-federalists believed
  that this should be paid. Otherwise, our credit
  and credibility across the world would be
  severely undermined. Article VI of the
  Constitution stipulates All debts contracted
  and engagements entered into, before the adoption
  of this Constitution, shall be as valid against
  the United States under this Constitution, as
  under the Confederation. But three questions
  arose. Would the state debts be assumed by the
  national government? Would the debt be refinanced
  but perpetuated or financed with goal of paying
  it off? Would discrimination be made between the
  current and original holders of the national
  debt? (Would, in other words, the original
  holders of the debt receive any compensation?)
  

8
Conflicting Systems of Political Economy
Hamilton Versus Madison

• The addition of a power to regulate commerce did
  not, however, mean that the Framers of the
  Constitution had the same economic vision. The
  visions of Hamilton and Madison were quite
  different even as they left the Constitutional
  Convention.

9
Hamiltons Mercantile Economic Vision

• Beginning in the 1780s, Hamilton believed that a
  perpetually funded debt and a national bank could
  be used as means of facilitating the growth of
  investment capital in the young republic. Getting
  wealthy merchants and mercantile men to invest in
  the national government, Hamilton believed, would
  tie their financial fate directly to the fate of
  the national government. They would not therefore
  let the republic fail. Hamilton also favored the
  development of large scale, public American
  manufacturers subsidized through government
  bounties. A nation that did not produce its own
  agricultural products and household
  manufacturers, Hamilton argued, would be
  primitive and lack the productive capacity
  generated by the division of labor in more
  advanced societies. It would also ultimately not
  have an adequate army or navy.

10
Jeffersons Celebration of the Independent Farmer

• Those who labour in the earth are the chosen
  people of God, if ever he had a chosen people,
  whose breasts he has made his peculiar deposit
  for substantial and genuine virtue. It is the
  focus in which he keeps alive that sacred fire,
  which otherwise might escape from the face of the
  earth. Corruption of morals in the mass of
  cultivators is a phenomenon of which no age nor
  nation has furnished an example. It is the mark
  set on those, who not looking up to heaven, to
  their own soil and industry, as does the
  husbandman, for their subsistance, depend for it
  on the casualties and caprice of customers.
  Dependance begets subservience and venality,
  suffocates the germ of virtue, and prepares fit
  tools for the designs of ambition. Generally
  speaking, the proportion which the aggregate of
  the other classes of citizens bears in any state
  to that of its husbandmen, is the proportion of
  its unsound to its healthy parts, and is a
  good-enough barometer whereby to measure its
  degree of corruption. Let our workshops remain
  in Europe. The mobs of great cities add just so
  much to the support of pure government, as sores
  do to the strength of the human body. Thomas
  Jefferson, Notes on the State of Virginia.

11
Madison and Jeffersons Commercial Agrarianism

• In contrast to Hamilton, Madison and Jefferson
  believed that the national debt should be paid
  and paid off, not perpetuated. They hoped that
  the United States would remain primarily an
  agricultural nation. The independent farmer, they
  believed, would not be beholden to either an
  employer or government patronage for his
  livelihood. The cornerstone of this economic
  vision was the policy of commercial
  discrimination against foreign nations that
  discriminated against American goods. Such a
  policy, Madison and Jefferson steadfastly if
  perhaps quixotically believed would compel
  foreign nations to open markets to Americas
  surplus agricultural products. An open market for
  American goods would, in turn, insure that large
  numbers of Americans did not have to become
  employed in manufacturing and thus that the
  republic would remain agrarian and virtuous.

12
Was the Constitution the Institutional Framework
for Capitalism?

• One need not resort to conspiracy theory to
  argue that the Constitution provided not just the
  historical capstone of American republicanism but
  also the institutional cornerstone of American
  capitalistic development and that some of the
  framers, at least, intended it. The powers given
  to Congress and the ones denied to the states are
  evidence enough. By creating a common market, a
  national system of taxation and finance, a common
  money system, a communications network, by
  granting legally enforceable property rights to
  inventors and authors, by denying to the states
  the right to coin money...emit Bills of
  Credit...make any Thing but gold and silver Coin
  a Tender, pass bills of attainder, ex post facto
  laws, and laws altering or impairing the
  Obligation of Contracts, the Constitution
  created a legal environment far more favorable to
  entrepreneurial values than anything America had
  known. Where in any of the original state
  constitutions is there a comparable list of
  permissions and prohibitions? - Edward
  Countryman, Of Republicanism, Capitalism, and
  the American Mind, The William and Mary
  Quarterly, Third Series, Vol. 44, No. 3, The
  Constitution of the United States (Jul., 1987),
  pp. 556-562

13
Problem under the Articles Corporate
Aggressiveness of the States

• Solution in the Constitution Article 1, Section
  10 prohibitions against the states
• No State shall enter into any Treaty, Alliance,
  or Confederation grant Letters of Marque and
  Reprisal.
• No State shall, without the Consent of the
  Congress, lay any Imposts or Duties on Imports or
  Exports, except what may be absolutely necessary
  for executing it's inspection Laws and the net
  Produce of all Duties and Imposts, laid by any
  State on Imports or Exports, shall be for the Use
  of the Treasury of the United States and all
  such Laws shall be subject to the Revision and
  Controul of the Congress.
• No State shall, without the Consent of Congress,
  lay any duty of Tonnage, keep Troops, or Ships of
  War in time of Peace, enter into any Agreement or
  Compact with another State, or with a foreign
  Power, or engage in War, unless actually invaded,
  or in such imminent Danger as will not admit of
  delay.

14
Problem under the Articles Threat of
Intervention of Foreign Nations in North America

• Strong Executive is created with the power as
  Commander in Chief
• Standing Army is created under the Constitution.
  No longer will it be held that the country can be
  defended by local militias.

15
Problem under the Articles (from the perspective
of the large states) large states are not
proportionately represented in the national
legislature

• Partial Solution in the Constitution
  Proportional Representation in the House of
  Representatives
• Revenue Legislation Must Originate in the House.
  Article I, section 7 grants the House the sole
  prerogative to originate revenue legislation.
  This was a concession to the large states. This
  important power, it was argued, would first be
  subject to approval in the body in which the
  large states were more completely represented and
  had greater power.
• Incidentally, this power has subsequently become
  the subject of considerable dispute. Everyone
  agrees that taxes measures (revenue raising
  measures) must originate in the House, but the
  Constitution does not directly address
  appropriations or spending measures. Must they
  also originate in the House? The House and the
  Senate disagree.

16
Problem Under the Articles Majority tyranny
within the states

• Solution in the Constitution Article 1, Section
  10 prohibitions against the states
• No State shall .... coin Money emit Bills of
  Credit make any Thing but gold and silver Coin a
  Tender in Payment of Debts pass any Bill of
  Attainder, ex post facto Law, or Law impairing
  the Obligation of Contracts, or grant any Title
  of Nobility.

17
Preventing the National Government from undue
Responsiveness

• Solution in the Constitution Long Leash
  Republicanism. Only one branch of the national
  government the House of Representatives - is
  directly elected by the people. The Senate is
  elected by the state legislatures, the President
  through an Electoral College, and the Judiciary
  is appointed by the President and confirmed by
  the Senate. The Federal Pyramid

18
Preventing the National Government from undue
Responsiveness

• The Extended Republic

19
Separation of Powers and Long Leash Republicanism

• The system of separation of powers set forth
  in the Constitution was designed to protect
  against legislative encroachments on the other
  branches and to control popular majorities. In
  part as a result of their experiences with the
  state governments during the mid-1780s and in
  part because their accompanying understanding of
  the nature of republican governments, Madison and
  the Federalists viewed the House of
  Representatives as a passionate, powerful, ever
  encroaching branch that necessarily
  predominates in republican governments.
  Tyrannical majorities, they believed, would be
  most likely to capture this branch. The checks
  given to the Judiciary, Executive, and Senate -
  including life tenure for judges, the qualified
  executive veto, and especially bicameralism -
  were thus designed to increase the independence
  and power of the weaker and more indirectly
  selected branches so that they had sufficient
  means to temper unjust legislative majorities and
  to defend themselves from constitutional
  encroachments from the House of Representatives.

20
Separation of Powers (continued)

• Why do we have separation of powers?
• a) Prevent tyrannical government
• b) Prevent majority tyranny
• c) To insure impartiality and the rule of law. No
  man should be a judge in his own cause. No branch
  should both make and interpret the laws or make
  and execute the laws.
• d) Good government Separation of powers
  guards against inept as well as tyrannical
  government.

21
Separation of Powers (continued)

• How is Separation of Powers maintained?
• a) Not by periodic revisions called by the
  people, or merely marking the different powers
  out on paper.
• b) Separation of powers is maintained by sharing
  powers among the branches in such a way as to
  give to the members of each branch the necessary
  constitutional means and personal motives to
  resist encroachments of the others. (The
  Federalist No. 51) Members of each branch must
  jealously guard the sphere of constitutional
  authority assigned to their branch against
  encroachments by the other branches.

22
Separation of Powers (continued)

• The conception of separation of powers under
  the Constitution also relies on a division of
  labor between the branches. It suggests that some
  powers are by their nature executive,
  legislative, and judicial and thus belong in the
  appropriate branch. It also suggests that under
  the Constitution the various branches have been
  designed by the virtue of how the officials in
  that branch are selected and the length of term
  of office to exercise certain powers.

23
The Relationship of Mode of Selection, Number,
and Term of Office to Power Exercised in the
Framers Constitution.

• Thus, Senators are given a long length of office
  and are expected to have an institutional memory
  in order to exercise power in the area of foreign
  relations.
• The President is unitary to allow for the swift
  executive of powers he has as commander in chief.
• Judges are given life terms to promote their
  understanding of the law and to exercise judgment
  in the service of upholding the law.
• The House of Representatives is numerous and
  members serve short terms to insure that they
  reflect the will of the people.

24
Problem under the Articles Difficulty of
Amendments

• Solution in the Framers Constitution
• Create a new system of amendments that allows for
  a majority of the states acting in unison to
  amend the document.
• Amendments can be proposed by a) two-thirds of
  the members present in both branches of the
  national legislature or b) by a special
  convention called at the request of
  three-quarters of the states.
• Amendments can be ratified by a) three quarters
  of the states or b) special conventions held in
  three quarters of the states.

25

• Was the Framers Constitution Consistent with
  the Principles of Republicanism and the American
  Revolution?

26
The Federalist Persuasion (Popular Sovereignty
and Republicanism)

• Popular Sovereignty and Republicanism is secured
  in the Constitution Popular Sovereignty The
  government must be strictly republican or
  wholly popular.
• If we resort for a criterion, to the different
  principles on which different forms of government
  are established, we may define a republic to be,
  or at least may bestow that name on, a government
  which derives all its powers directly or
  indirectly from the great body of the people and
  is administered by persons holding their offices
  during pleasure, for a limited period, or during
  good behaviour. It is essential to such a
  government, that it be derived from the great
  body of the society, not from an inconsiderable
  proportion, or a favored class of it otherwise a
  handful of tyrannical nobles, exercising their
  oppressions by a delegation of their powers,
  might aspire to the rank of republicans, and
  claim for their government the honorable title of
  republic. It is sufficient for such a government,
  that the persons administering it be appointed,
  either directly or indirectly, by the people and
  that they hold their appointments by either of
  the tenures just specified otherwise every
  government in the United States, as well as every
  other popular government that has been or can be
  well organized or well executed, would be
  degraded from the republican character. The
  Federalist No. 39.

27
Federalism (According the Federalists)

• National Supremacy is limited to those powers
  enumerated in the Constitution or fairly implied
  from them. The states The states retained powers
  not given to the national government or implied
  from those enumerated constitutional powers, but
  the states had no right to secede from the union.
  
• The national government was not granted a
  universal or even qualified veto, but national
  supremacy was both insured and limited through
  enumeration, judicial review of state laws, the
  national supremacy clause, and Article I, Section
  ten restrictions on the states.
• The Constitution reserves to the states the
  exercise of the police powers over health,
  safety, and morals of the citizenry.

28
A Bill of Rights is Not Necessary (Natural Rights
are not threatened by the Constitution)

• Paper declarations do not protect natural rights.
• Institutional arrangements and extent of
  territory will protect rights.
• The states have bills of Rights
• The Constitution is a Bill of Rights

29

• The Anti-Federalists

30
Who Were They?

• Small farmers and debtors?
• But also some wealthy and powerful men who
  favored state sovereignty.
• Men who were fastened to the Whig ideology of the
  Revolution that feared corruption and
  governmental tyranny.

31
Anti-federalists The True Federalists

• The Federalists assumed the name Federalists,
  but it applies better to the Anti-federalists who
  were the real proponents of a decentralized
  system built upon the idea of a limited national
  government and substantial local autonomy. A
  leading Anti-federalist, Elbridge Gerry suggested
  that the proper labels should be Rats and
  Anti-Rats for those in favor and those opposed
  to ratification.

32
What Did the Anti-Federalists Believe?

• The Government Under the Constitution Would
  Become Tyrannical. They feared...
• Presidential Reeligibility
• Life tenures for Federal Judges
• Too Few Representatives
• Government was Too Distant from the People
• Inadequate System of Separation of Powers

33
The Anti-Federalists (continued)

• The Small Republic Thesis They believed that
  the United States was too large to have a
  republican form of government. Republics could
  only exist in small areas with homogeneous
  interests where people could know their
  representatives.

34
The Anti-federalists case Against the Extended
Republic

• A. Elections from large districts and extent of
  territory were efforts to diminish the chances
  for elections of men of middling rank with only
  local reputations. When Madison and other
  Federalists defend elections from large districts
  as a means of extracting the purest and noblest
  characters in the society and promoting the
  choice of men with the most attractive merit and
  the most diffusive and established characters,
  they were, according to many Anti-federalists,
  really using code words not simply for the
  selection of a natural aristocracy but for the
  choice of men who had extensive property,
  education, refinement, and social status and who
  were unlikely to favor paper money or low
  taxation rates. Men of property more easily form
  associations and unite their interests. The
  Federalists also sought to diminish personal
  solicitations (crash electioneering such as
  making speeches) over permanent popularity.
  
• B. Many of the Anti-federalists saw the adoption
  of an extended republic as a means of preventing
  the operation of local democracy as it had
  developed in the states during the mid-1780s.

35
Union and a Strengthened Confederation

• The Anti-federalists said that they did not
  oppose union, only a consolidation of the states
  into one grand republic. They favored some
  additions to the powers of the national
  government.

36
Conservatives or Men of Little Faith

• Anti-federalists wanted to conserve the
  government under the Articles. They were
  conservatives in this sense and feared the
  adventurousness of the Federalists.

37
The Addition of the Bill of Rights to the
Constitution

• The Bill of Rights became a part of the
  Constitution as a result of the dynamics of the
  ratification struggle. The Anti-federalists
  raised the objection that there was no bill of
  rights. The Federalists responded by agreeing to
  recommend amendments to the Ist Congress after
  ratification. James Madison fulfilled this
  campaign pledge. But did Madison give the
  Anti-federalists what they wanted?