We the People Ch. 2 - Founding & Constitution

# The Founding & the Constitution ## What Government Does & Why It Matters For nearly 200 years since 1834, a statue of Thomas Jefferson has stood in New York City Hall, residing in the city's Council Chambers since 1915. A debate has been simmering for two decades about removing the statue. Many...

# The Founding & the Constitution ## What Government Does & Why It Matters For nearly 200 years since 1834, a statue of Thomas Jefferson has stood in New York City Hall, residing in the city's Council Chambers since 1915. A debate has been simmering for two decades about removing the statue. Many of the Founders, including Jefferson, owned enslaved people even as they were formulating the nation's founding documents such as the Declaration of Independence and the U.S. Constitution, which uphold the ideas of liberty, justice, equality, and the pursuit of happiness. On one side of the debate are members of the city council's Black, Latino, and Asian caucus, who described the statue as "oppressive" and "racist", and who, in a letter to the mayor, argued that it serves as "a constant reminder of the injustices that have plagued communities of color since the inception of our country." Council member Inez Barron said that Jefferson "felt that Blacks were inferior to Whites - in his own words", and that he had removed Native peoples from their ancestral lands. Those urging that the statue remain in City Hall had a different view. In a letter to the city's Public Design Commission, Princeton historian Sean Wilentz argued that “the statue honors Jefferson for his greatest contribution to America, indeed, to humankind: the basic idea, radical then, radical now, that all men are created equal.” Raymond Lavertue, a historian from the University of Oxford, testified that “removal is a very simple solution that will erase the debate” and that although Jefferson was “massively flawed”, his ideas on equality should “be grappled with daily”. In October 2021, the city's Public Design Commission decided to remove the statue. It will be moved to the New-York Historical Society, whose president and chief executive, Louise Mirrer, planned to create an exhibition examining “the relationship between the founding ideals of freedom and equality set down by Jefferson and their lived experience, which included supporting slavery and owning enslaved people. The Declaration of Independence explained the American colonists' right to revolt against England. Abraham Lincoln called it a “rebuke to tyranny and oppression”. The U.S. Constitution lays out the purposes of government: to promote justice, to maintain peace at home, to defend the nation from foreign foes, to provide for the “general welfare" of Americans, and above all, to secure the “blessings of liberty” for them. It also spells out a plan for achieving these objectives, including institutions to exercise legislative, executive, and judicial powers and a division of ## The First Founding: Interests and Conflicts ### Explain the conflicts and coalitions that led to the Declaration of Independence and the Articles of Confederation To understand dynamic historical eras such as the Founding of the United States, it is helpful to focus on the different perspectives of the people that were present. In American politics, the Founders - people like James Madison, Thomas Jefferson, and Alexander Hamilton - usually take center stage and are revered for articulating American values and ideals such as individual liberty, equality, justice, and the pursuit of happiness. However, recent scholarship has highlighted the importance of incorporating two additional processes in our understanding of the Founding: land removal from Native nations and enslavement of Africans. In fact, both practices are directly connected to some of the crucial conflicts that led the 13 colonies to declare independence. While it may be difficult to reconcile the lofty ideals of the Founders with the unfair and inhumane treatment of two groups of people, it is necessary to acknowledge the complexity of the Founding period. ### Native Nations and Colonial Life Before the first colonists arrived, the land that would come to be known as the United States was not empty. Hundreds of independent Native nations and millions of Native peoples were already there. Colonists from England set up the first successful colony in America in 1607 in Jamestown, Virginia. In 1620 the second colony was established in Plymouth, Massachusetts. In both places, the colonists settled on land that was occupied at the time by powerful Native nations (among them the Pequot, Narragansett, and Algonquin), who were already practicing a form of democratic self-governance. In fact, there were 60,000 Native Americans living in what would later become the New England colonies. The colonists brought desirable new goods to trade with the Native nations, but they also brought foreign diseases such as smallpox, to which the Native population had no immunity. As a result, their numbers were quickly decimated. For example, of an estimated 12,000 Native Americans when Jamestown was settled in 1607, only 1,000 were left by 1700. For this reason and others, the initially cordial relations between colonists and Native peoples worsened steadily. Subsequent waves of English settlers rejected Native land ownership and forcibly confiscated land for themselves, displacing Native nations. This unauthorized taking of land, a process known as settler colonialism, made possible the growth of the colonies. After all, land was the most valuable commodity in early America. ### British Taxes and Colonial Interests During the first half of the eighteenth century, Britain ruled its American colonies with a light hand. British rule was hardly evident outside the largest towns, and colonists avoided most taxes levied in London. Beginning in the 1760s, however, debts and other financial problems forced the British government to search for new revenue sources. This search quickly led to the North American colonies. Here the colonists were divided into two groups: the radicals (small farmers, shopkeepers, and artisans) and the colonial elite (merchants, planters, royalists). The radicals tended to have fewer economic resources and were distrustful of the British. In contrast, many elites benefited from British rule and supported the Crown. However, its aggressive new tax and trade policies split the elites, enhancing the radicals' political influence and setting off a chain of events that culminated in the American Revolution. At that time, governments relied mainly on tariffs, duties, and other taxes on commerce to raise revenue. In particular, the Stamp Act of 1765 imposed taxes on many printed items in the colonies, and the Sugar Act of 1764 taxed sugar, molasses, and other commodities. Many colonists saw these moves as detrimental to their livelihoods and a challenge to the colonies' autonomy. United under the slogan "No taxation without representation", they organized demonstrations and a boycott of British goods that ultimately forced the Crown to rescind most of its hated new taxes. ### Political Strife Radicalized the Colonists Ongoing colonial strife was the background for the events of 1773-74. With the Tea Act of 1773, the British government granted the politically powerful East India Company a monopoly on the export of tea from Britain, eliminating a lucrative trade for colonial business interests. Worse, the company planned to sell the tea directly in the colonies instead of working through the colonial merchants. Because tea was an extremely important commodity during the 1770s, these British actions posed a serious threat to New England business interests. In response, the radicals joined the elites to protest the Tea Act. In three colonies, antitax Americans blocked the unloading of taxed tea, resulting in its return to Britain. However, the most dramatic response was a protest that came to be known as the Boston Tea Party. When the royal governor of Massachusetts refused to allow three shiploads of unsold tea to leave Boston Harbor, the colonists seized this opportunity: on the night of December 16, 1773, fifty of them, some “disguised” as Native Americans, boarded the vessels and threw all 342 chests of tea into the harbor. In response, Parliament closed the port of Boston to commerce, changed the colonial government of Massachusetts, and removed accused persons to Britain for trial. Most important, Parliament restricted colonists' movement to the west. These acts of repression further radicalized the new Americans and set in motion a cycle of provocation and retaliation that in 1774 resulted in the convening of the First Continental Congress. An assembly of delegates from 12 colonies, the group called for a total boycott of British goods and, under the radicals' prodding, began considering the possibility of ending British rule. As relations with Britain further deteriorated, there was mounting public pressure from the colonies to declare independence. ### Enslaved Africans and the Colonial Economy While the calls to end British rule were spurred by crushing taxes, repressive measures, and representational concerns, economic forces within the colonies were also at play. Key among these were issues related to enslavement - the system of holding people for the purpose of forced labor so that slave owners could extract profit. In fact, profits gained through slavery were critical to the early development of the colonial economy and made it possible to imagine a future without the British. ## The Declaration of Independence Explained Why the Colonists Wanted to Break with Great Britain As the slave trade took hold, mounting tensions led to violent skirmishes between British soldiers and American militia at Lexington and Concord that ultimately erupted into the Revolutionary War. In 1776, more than a year after the war commenced, the Second Continental Congress appointed a committee to draft a statement of American independence from British rule. Thomas Jefferson of Virginia, who drafted the majority of the document, had the daunting task of legitimizing separation from Britain and announcing the creation of a new nation to the rest of the world. After revisions by other delegates, on July 4, 1776, the Second Continental Congress voted to officially accept the document and declare independence. Politically, the Declaration was remarkable because despite the colonists' differences along regional, economic, and philosophical lines, it focused on principles, goals, and grievances that might unify the various groups. The first section begins with a sweeping statement of human rights: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." In the world of 1776, in which some kings still claimed a God-given right to rule, this was a dramatic statement. The Declaration then states that the purpose of governments is to secure the aforementioned rights and that governments derive "their just powers from the consent of the governed.” Therefore, when governments violate these rights—when governments no longer have the support of the people—the people have a duty to overthrow them. The second part of the Declaration lists 27 grievances against King George III. The long list of grievances made clear to the global community that the colonists could not reconcile with Britain. Yet, even while the Founders were issuing this document that extolled the importance of freedom and self-government, the burgeoning self-sovereign nation was at the same time limiting sovereignty for Native nations. Of particular concern to the colonists was Native resistance to white settlers advancing on the frontier. They were especially worried those Native nations would form an alliance with the British against the colonies. In fact, the last grievance cited in the Declaration accuses the king of colluding with Native peoples. Black people were also excluded from the Founders' belief that all men were created equal. At the time of the signing of the Declaration, slavery was legal in all 13 colonies, and most of the signatories, including Thomas Jefferson, enslaved Black people. The final paragraph of the Declaration is an assertion of independence. Overall, the document both reviewed a history and identified a set of principles that, together, would forge a new national identity. Today, the Declaration is recognized as a key document from the Founding period, marking the transition from a group of colonies into an independent nation. ### The European Enlightenment Influenced the Founders In describing the expectations of good government in the Declaration, Jefferson drew heavily from philosophers associated with the European Enlightenment. Indeed, while America's leaders were first and foremost practical politicians, they also read political philosophy and were influenced by the important thinkers of their day, including Hobbes, Locke, and Montesquieu. In comparison to what the Americans experienced under British rule, the Enlightenment writings concerning the relationship between organized government and the people presented an exciting alternate future. The seventeenth-century British philosopher John Locke advanced the principles of republican government by arguing not only that monarchical power was not absolute but that such power was dangerous and should therefore be limited. Locke held that the people retain rights despite the social contract they make with the monarch. Preserving safety in society is not enough; people's lives, liberty, and property also require protection. Further, Locke wrote in this Second Treatise of Civil Government that the people of a country have a right to overthrow a government they believe to be unjust or tyrannical. This key idea shaped the thinking of the Founders, including Jefferson, who said that the Declaration of Independence was “pure Locke”. Locke advanced the important ideas of limited government and consent of the governed. Another British political thinker, Thomas Hobbes, was no advocate of democratic government, but he wrote persuasively in *Leviathan* about the necessity of a government authority as an antidote to human existence in a government-less state of nature, where life was "solitary, poor, nasty, brutish, and short.” He also believed that governments should have limits on the powers they exercised and that political systems are based on the idea of “contract”. ### Articles of Confederation Created America’s First National Government Having declared independence, the colonies needed to establish a government. In November 1777 the Continental Congress adopted the Articles of Confederation – the United States’ first written constitution. Eventually ratified by all the states in 1781, it functioned as the country’s constitution until the final months of 1788. The colonists’ experience with the powerful British government made them fearful of establishing a powerful central government of their own. Thus, the first goal of the Articles was to limit the powers of the central government; as provided under Article II, “each state retains its sovereignty, freedom, and independence”. These attributes define *confederation*. Given that there was no president or other presiding officer, the entire national government consisted of a Congress with very little power. Its members were little more than messengers from the state legislatures: their salaries were paid out of the state treasuries; they were subject to immediate recall by state authorities; and each state, regardless of its population, had only one vote. All 13 states had to agree to any amendments to the Articles of Confederation after it was ratified. Congress was given the power to declare war and make peace, to negotiate treaties and alliances, to issue currency, to borrow money, and to regulate trade with the Native nations. Any laws it passed, however, could be carried out only by state governments. Congress could also appoint the senior officers of the U.S. Army - but there was no such army, because the nation’s armed forces consisted only of the state militias. Finally, Congress had no power to collect taxes. These extreme limits on the national government made the Articles of Confederation hopelessly impractical. ### The Failure of the Articles of Confederation Made the “Second Founding” Necessary Describe the political context of the Constitutional Convention and the compromises achieved there As we have seen, the Americans prevailed and won the Revolutionary War, thereby securing their independence. However, a series of developments following the armistice in the 1780s highlighted the shortcomings of the Articles of Confederation in holding the former colonies together as an independent and effective nation-state. These shortcomings led to what was essentially a second founding. First, the United States had great difficulty conducting its foreign affairs successfully, as there was no national military and competition among the states for foreign commerce allowed the European powers to play them off against one another. At one point, John Adams, who had become a leader in the independence struggle, was sent to negotiate a new treaty with Britain, one that would cover disputes left over from the war. The British Parliament responded that since the United States under the Articles was unable to enforce existing treaties, it would negotiate with each of the 13 states separately. Second, the power that states retained under the Articles of Confederation began to alarm well-to-do Americans -- in particular, New England merchants and southern planters -- when radical forces gained power in a number of state governments. As a result of the Revolution, one key segment of the colonial elite -- the royal land, office, and patent holders -- was stripped of its economic and political privileges. While the elites were weakened, the radicals had gained strength and now controlled key states, including Pennsylvania and Rhode Island, where they pursued policies that struck terror in the hearts of business and property owners throughout the country. The central government under the Articles was powerless to intervene. Continuing international weakness and domestic economic turmoil led many Americans to consider revising their newly adopted form of government. In the fall of 1786, the Virginia legislature invited representatives of all the states to a convention in Annapolis, Maryland. It was established at the Annapolis Convention that a future constitutional convention would need to address how to create a stronger central government. ### Shays' Rebellion It's quite possible that the Constitutional Convention of 1787 in Philadelphia would never have taken place except for Shays' Rebellion. In the winter following the Annapolis Convention, Daniel Shays, a former army captain, led a mob of debt-ridden farmers in an effort to prevent foreclosures on their land. A militia organized by the state governor and funded by a group of prominent merchants dispersed the mob, but Shays and his followers then attempted to capture the federal arsenal at Springfield. Within a few days, the state government regained control and captured 14 of the rebels. But later that year, a newly elected Massachusetts legislature granted some of the farmers’ demands. George Washington summed up the effects of the incident on the new nation’s leaders: “I am mortified beyond expression that in the moment of our acknowledged independence we should by our conduct verify the predictions of our transatlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe." The Congress under the Confederation had shown itself unable to act decisively in a time of crisis. In response to the escalating crisis surrounding the Articles, the states were asked to send representatives to Philadelphia to discuss constitutional revision. Delegates were eventually sent by every state except Rhode Island. ## The Constitutional Convention and the Great Compromise The delegates who convened in Philadelphia in May 1787 had political strife, international embarrassment, national weakness, and local rebellion on their minds. Recognizing that these issues were symptoms of fundamental flaws in the Articles of Confederation, the delegates soon abandoned the plan to revise the Articles and committed themselves to a new founding – a transformed, and ultimately successful, attempt to create a legitimate and effective national system of government. This effort would occupy the convention for the next five months. ### The Great Compromise Supporters of a new government fired their opening shot on May 29, 1787, when Edmund Randolph of Virginia offered a resolution proposing sweeping corrections and additions to the Articles of Confederation. Randolph represented the Virginia delegation, which also included James Madison and George Washington. The proposal, drafted by the Virginia delegation, provided for virtually every aspect of a new government. The most controversial portion of Randolph's motion was called the *Virginia Plan*. It provided for representation in the national legislature to be based on the population of each state or the proportion of each state’s revenue contribution to the national government, or both. Randolph also proposed a second chamber of the legislature, to be elected by the members of the first chamber. Therefore, Congress would have two chambers and take the form of a bicameral legislature. Since the states varied enormously in population and wealth, the Virginia Plan was heavily biased in favor of the large states. While the convention was debating the Virginia Plan, opposition to it began to mount as more delegates arrived in Philadelphia. William Paterson of New Jersey introduced a competing resolution, the *New Jersey Plan*. Its main proponents were delegates from the less populous states, including Delaware, New Jersey, Connecticut, and New York, who asserted that the more populous states – Virginia, Pennsylvania, North Carolina, Massachusetts, and Georgia – would dominate the new government if representation were determined by population. The smaller states argued that each state should be equally represented regardless of its population. Under the New Jersey Plan, there would be one chamber, a system known as a *unicameral legislature*. The issue of representation threatened to wreck the entire constitutional enterprise. As factions maneuvered and tempers flared, the Union was on the verge of falling apart. Finally, the debate was settled by the *Connecticut Compromise*, also known as the *Great Compromise*. Under its terms, there would be a bicameral legislature. Yet in one chamber of Congress — the House of Representatives — seats would be apportioned according to population, as delegates from the large states had wished. But in a second chamber — the Senate — each state would have equal representation, as the small states preferred. ### The Constitution and Slavery The institution of slavery was crucial to the colonial economy. However, by the late eighteenth century, attitudes toward the acceptability of slavery, especially in northern cities, was shifting. And calls to end the transatlantic slave trade and slavery in America became louder after the Declaration of Independence declared that “all men are created equal.” But it’s important to recognize that pressure also came from enslaved people themselves. Enslaved Black people strategically resisted their treatment through both obvious and subtle ways. The more explicit forms of resistance included running away and armed mass uprisings. Other discreet acts of rebellion included secretly learning how to read, destroying tools, and slowing down work pace. Together, these forms of resistance were instrumental in pointing out the brutality of the institution of slavery and how it ran counter to the professed democratic ideals of the young country. The discomfort around slavery became more pronounced with the onset of the Revolutionary War. After the British encouraged enslaved Black people to fight on the British side in exchange for their freedom, many of the 13 colonies countered that enslaved people who served in the Continental Army could have their freedom. In fact, Crispus Attucks, a man of African and Native background who had escaped from slavery, was the first person killed in the American Revolution. The active involvement of thousands of Black soldiers, fighting alongside the colonists, weakened support for slavery. As the process of drafting a new constitution began, the Founders faced a nation divided over slavery. Many of the conflicts that emerged during the Constitutional Convention reflected fundamental differences between southern and northern states related to slavery. From an economic perspective, southerners wanted to protect slavery, and while it made northerners uneasy, many of them benefited from investments in the institution. From a moral perspective, the issue was more complicated. There was widespread acknowledgment that slavery was incompatible with democratic principles and should not be legitimized in the Constitution. Embarrassment about protecting the institution of slavery led to the omission of the words “slavery” and “slave” from the document. Despite this, constitutional experts have drawn attention to two important provisions related to slavery: the Three-Fifths Compromise and the extension of the slave trade. ### Three-Fifths Compromise Slavery was at the center of the debate about representation in the House of Representatives. More than 90 percent of the country’s enslaved people lived in five states (Georgia, Maryland, North Carolina, South Carolina, and Virginia), where they accounted for 30 percent of the total population. Delegates from these states wanted enslaved people to be counted as free persons for the purposes of determining representation in the House of Representatives. Were they to be counted as part of a state's population even though they weren’t citizens, thereby giving southern states increased representation in the House? While delegates from the northern states held a range of opinions about the morality of slavery, most opposed counting the population of enslaved people in the apportionment of congressional seats, although this did not necessarily mean they opposed slavery itself. James Wilson of Pennsylvania, for example, argued that if enslaved people were counted for this purpose, other forms of property should be as well. But southern delegates insisted they would never agree to the new government if the northerners refused to give in. Northerners and southerners eventually reached agreement through the Three-Fifths Compromise: seats in the House of Representatives would be apportioned according to a “population” in which “three-fifths” of enslaved people would be counted. As a result, the southern states gained added influence in the House of Representatives, but not as much as they wanted and not as much as the northern states feared. The Three-Fifths Compromise would remain in effect until the Fourteenth Amendment repealed it in 1868. ### Extension Of The Slave Trade After the issue of representation was resolved, the question arose of how long the trade of enslaved Africans would continue. The slave trade was violent. It involved forcibly removing people from their African homelands (often tearing them from their families), transporting them across the Atlantic Ocean in brutal, inhumane conditions, selling those who survived in slave auctions, and threatening them with violence and death if they attempted to escape. Many delegates were appalled at the idea of accommodating an extension of the slave trade in the new Constitution; others considered it key to their future economic livelihood. In hopes of protecting their economic interests, the South Carolina delegates proposed to ban the federal government from regulating the importation of enslaved Africans. At the time of the Convention, 10 states had already outlawed the importation of African captives. Delegates from these states objected to the South Carolina proposal. But in the end, protecting the slave trade proved pivotal to keeping the union intact. Delegates from the three states where it was legal — Georgia, North Carolina, and South Carolina — threatened to walk out of the Convention if the Constitution banned it. To keep these states in the union, a deal was struck whereby the trade or “importation” of enslaved Black people was allowed to continue uninterrupted for another 20 years. As part of this compromise, the federal government was granted increased authority to tax the imports of enslaved Africans. ## The Constitution Created Both Bold Powers and Sharp Limits on Power ### Describe the principles of governance and the powers of the national government defined by the Constitution Together, the Great Compromise and the Three-Fifths Compromise showcase the difficulty in uniting a geographically diverse group of people and creating a national government that is representative of all. But with these important principles in place, delegates at the Convention moved to fashion a constitution consistent with their economic and political interests. In particular, the framers wanted a new government that, first, would be strong enough to promote commerce and protect property from radical state legislatures. This goal led to the constitutional provisions for national control over commerce and finance, for national judicial supremacy over state courts, and for a strong presidency. Second, the framers wanted to prevent what they saw as the threat posed by the "excessive democracy" of both state and national governments under the Articles of Confederation. This desire led to such constitutional principles as a bicameral (or two-chambered) legislature; checks and balances among the three branches of government; staggered terms in office; and indirect election (selection of the president by an electoral college and of senators by state legislatures, rather than directly by voters). Third, lacking the power to force the states or the public to accept the new form of government, the framers wanted to identify principles that would help gain support for it. This goal became the basis of the constitutional provision for direct popular election of representatives and, later, of the addition of the Bill of Rights to the Constitution. Finally, the framers wanted to ensure that the government they created did not pose an even greater threat to its citizens' liberties and property rights than did the radical state legislatures they despised. To prevent abuses of power, they incorporated principles such as the separation of powers and federalism into the Constitution. ### The Legislative Branch Was Designed to Be the Most Powerful In Article I, Sections 1-7], the Constitution provides for a Congress consisting of two chambers: a House of Representatives and a Senate. Members of the House of Representatives were given two-year terms in office and were to be elected directly by the people. Members of the Senate were to be appointed by the state legislatures (a provision changed in 1913 by the Seventeenth Amendment, which instituted direct election of senators) for six-year terms. These terms were staggered so tthat the terms of one-third of the senators would expire every two years. The Constitution assigned somewhat different tasks to the House and Senate. Though the enactment of a law requires the approval of both, the Senate alone is given the power to ratify treaties and approve presidential appointments. The House, on the other had, is given the sole power to originate revenue bills. The character of the legislative branch was related to the framers’ major goals. The House was designed to be directly responsible to the people, with all members serving two-year terms, to encourage popular support for the new Constitution and thus enhance the power of the new government. At the same time, to guard against "excessive democracy,” the power of the House was checked by that of the Senate, whose members were to be appointed by the states for long terms rather than elected directly by the people for short ones. The purpose of this provision, according to Alexander Hamilton, was to avoid “an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive”. Staggered terms in the Senate were intended to make that body even more resistant to popular pressure. Since only one-third of the senators would be selected every two years, it was thought that the institution would be protected from changes in public opinion transmitted by the state legislatures. The issues of governmental power and popular consent are important throughout the Constitution. Section 8 of Article I specifically lists the powers of Congress, whis include the authority to collect taxes, borrow money, regulate commerce, declare war, and maintain an army and navy. By granting Congress these powers, the framers indicated clearly that they intended the new government to be far more powerful than its predecessor under the Articles of Confederation. At the same time, by assigning its most important powers to Congress, they promoted popular acceptance of this critical change by reassuring citizens that their views would be fully represented whenever these powers were used. As a furhter safeguard that the new government would pose no threat to the people, the Constitution implies that any powers not listed were not granted at all. This is what Chief Justice of the Supreme Court John Marshall named the *doctrine of expressed powers*: the Constitution grants only those powers specifically expressed in its text. But the framers intended to create an active and powerfult government, so they also included the *necessary and proper clause*, also called the *elastic clause*, which declares that Congress can write laws needed to carry out its expressed powers. This clause indicates that expressed powers could be broadly interpreted and were meant to be a source of strength to the national government, not a limitation on it. In response to the charge that they intended to give it too much power, the framers included language in the Tenth Amendment stipulating that powers not specifically granted by the Constitution to the federal government were reserved to the states or to the people. As we’ll see in Chapter 3, the resulting tension between the elastic clause and the Tenth Amendment has been at the heart of constitutional struggles between federal and state powers. ### The Executive Branch Created a Brand-New Office The Articles of Confederation had not provided for an executive branch. The president under the Articles was the official chosen by the Congress to preside over its sessions, not the chief executive of the national government. The framers viewed the absence of an executive as a source of weakness. Accordingly, the Constitution provides for the presidency in Article II. As Hamilton commented, the article aims toward "energy in the Executive”. It does so in an effort to overcome the natural tendency toward stalemate that was built into the separation of the legislature into two chambers and of governmental powers among the three branches. The Constitution affords the president a measure of independence from both the people and the other branches of government—particularly the Congress. However, unlike the legislative branch, for which the Constitution enumerates explicit powers, executive branch powers are often implied. Throughout the nation’s history, presidents have interpreted executive power in many different ways, as we’ll see in Chapter 13. In line with the framers’ goal of increased power for the national government, the president is granted the power to accept ambassadors from other countries—to “recognize” other governments—as well as the power to negotiate treaties, although their acceptance requires approval of the Senate by a two-thirds vote. The president also has the power to grant reprieves and pardons except in cases of impeachment, appoint major departmental heads (e.g., Agriculture, Defense, Energy, Justice), convene Congress in a special session, and veto bills it passes. The veto power is not absolute, since Congress can override it by a two-thirds vote, reflecting the framers’ concern with checks and balances. The framers hoped to create a presidency that would make the federal government rather than the states the agency capable of timely and decisive action to deal with national issues and problems. At the same time, however, they tried to help the presidency withstand excessively democratic pressures by establishing an electoral college through which to elect the president. ### The Judicial Branch Was a Check on Too Much Democracy In establishing, in Article III, that “the judicial Power of the United States” resides in the Supreme Court, the Constiution reflects the framers’ preoccupations with nationalizing governmental power and checking radical democratic impulses while preventing the national government itself from interfering with liberty and property ownership. The most important expression of this intention is granting the Supreme Court the power to resolve any conflicts between federal and state laws. In particular, it can determine whether a power is exclusive to the national government, exclusive to the states, or shared between the two. In addition, the Supreme Court is assigned jurisdiction over controversies between citizens of different states. As the country developed a national economy, it came to rely increasingly on the federal judiciary, rather than state courts, to resolve disputes. Federal judges are given lifetime appointments to protect them from political or public pressure and from interference by the other branches. The judiciary isn't totally free of political considerations of the other branches, however, for the president appoints the judges and the Senate must approve the appointments. Congress also has the power to create inferior (lower) courts, change the jurisdiction of the federal courts (the geographic area or types of cases they have authority over), add or subtract federal judges, remove judges through impeachment, and even change the size of the Supreme Court. The Constitution doesn’t explicitly mention judicial review – the power of a court to determine whether the actions of the Congress or the executive are consistent with law and the Constitution. The Supreme Court eventually assumed the power of judicial review in the case *Marbury v. Madison* (1803). Its assumption of this power, as we’ll see in Chapter 13, was based not on the Constitution itself but on the strategic maneuverings of individual justices and the politics of later decades. ### National Unity and Power Set the New Constitution Apart from the Old Articles The Constitution addressed the framers’ concern with national unity and power in the comity clause of Article IV, which provides for reciprocity among all states and their citizens. That is, each state is prohibited from discriminating against the citizens of or goods from other states in favor of its own citizens or goods, with the Supreme Court being charges with deciding cases where such discrimination is alleged. The Constitution thus restricts the power of the states so as to give the national government enough power to ensure a free-flowing national economy. The framers' concern with national supremacy was also expressed in Article VI, whose *supremacy clause* provides that national laws and treaties "shall be the supreme Law of the Land.” This means that laws made under the "Authority of the United States” are superior to those adopted by any state or other subdivision and that the states must respect all treaties made under that authority. The supremacy clause also binds all state and local as well as federal officials to take an oath to support the national Constitution. Therefore, they must enforce national law over state law if the two conflict. ## The Constitution Establishes the Process for Amendment and Ratification The Constitution establishes procedures for its own amendment in Article V. The requirements are so difficult that, as we’ll see below, the amending process has succeeded only 17 times since 1791, when the first 10 amendments were adopted. The rules for ratification, or adoption, of the Constitution are set forth in Article VII. Of the 13 states, 9 would have to ratify it in order for it to go into effect. Since 1789, more than 11,000 amendments have been formally introduced in Congress. Of these, Congress officially proposed only 29, and 27 were eventually ratified by the states. Historically, most amendment efforts have failed because they attempted to use the constitutional amendment process, instead of legislation, to address a specific public problem. The successful amendments, on the other hand, are concerned with the broader structure or composition of government — not with specific policies. This pattern is consistent with the dictionary definition of constitution as the makeup or composition of something. And it’s consistent with the concept of a constitution as “higher law,” whose purpose is to establish a framework within which the processes of governing and making ordinary law can take place. There is great wisdom in this concept. A constitution ought to make laws and policies possible, but not determine what they ought to be. For example, property ownership is one of the most fundamental and well-established rights in the United States—not because it is recognized as such in the Constitution, but because legislatures and courts, working within an agreed-upon constitutional framework, have made it a crime for anyone, including the government, to trespass on or take away property without compensation. A constitution is good if it leads to just legislation, to courts that protect citizens’ liberties and rights, and to appropriate behavior of public officials. Its principles can be a citizen’s dependable defense against the abuse of power. Since the Founding, debates have raged as to whether the United States Constitution achieves these goals for all Americans. ## The Legislative Branch ### The Legislative Branch was designed to be the most powerful In Article I, Sections 1-7, the Constitution provides for a Congress consisting of two chambers: a House of Representatives and a Senate. Members of the House of Representatives were given two-year terms in office and were to be elected directly by the people. Members of the Senate were to be appointed by the state legislatures (a provision changed in 1913 by the Seventeenth Amendment, which instituted direct election of senators) for six-year terms. These terms were staggered so that the terms of one-third of the senators would expire every two years. The Constitution assigned somewhat different tasks to the House and Senate. Though the enactment of a law requires the approval of both, the Senate alone is given the power to ratify treaties and approve presidential appointments. The House, on the other hand, is given the sole power to originate revenue bills. The character of the legislative branch was related to the framers’ major goals. The