Overview of Constitutional Structure

Early History of the Constitution

1. Declaration of Independence and the Articles of Confederation, and the Constitutional Convention

   1. Declaration of Independence

      1. King was aiming towards absolute tyranny over the states and signed off on by representatives of US, declaring that these colonies by right should be free and independent states with the full power to make and levy war and all the powers of what independent states may do.

      2. No form or content was given to state of united-ness, other than the fact that they were doing it at the same time. Independence from Britain was declared before there was an agreement as to united-ness of states, or how the structure would be formed.

      3. Ideal was to not be a government at all, but more like a confederacy of states, each of which would have a central gov’t. Most creative energy was going towards creation of state constitutions and governments.

      4. Surprisingly small amount of trade between the colonies as between colonies and Britain.

      5. Widespread belief that small government was good – that being governed by less government was better.

      6. People were aware that there were important differences between the colonies as to how much their economies depended on slavery. Didn’t want ability to declare independence to depend on question of slavery.

      7. States made a great deal of difference back then – very different across states.

   2. Articles of Confederation

      1. Engineered a weak confederation.

         1. Article 2 – each state retains power and jurisdiction which is not expressly delegated to the Congress of United States.

         2. Congress was subject to recall – state was picking representatives, not the people.

         3. Each state had one vote in the Congress.

         4. Voting rules required super majority of 9 states to make war, treaties, coin money, borrow money, appropriate money, make budgets.

         5. Confederacy ran on common treasury supplied by the states – central gov’t had no power to tax people directly.

      2. Did not create branches of gov’t

         1. No executive branch – committee of the states and one person was chosen as president, but it would rotate, so there was no single president for more than 1 year.

         2. No confederacy courts created – entirely reliant on courts of individual states, except when there were legal conflicts between states.

      3. History

         1. Didn’t go into effect until 1781 when last state signed on (MD).

         2. For most of war years, there was no federal constitution pulling together states as an entity. War was really fought by separate states and their militias, coordinated by a central command. There was more a Congress of delegates – informal meeting of representatives.

   3. Constitutional Convention

      1. Convention was just supposed to report back to state gov’t to make Articles of Confederation better.

      2. But of course they adopted a new document with provisions that would call for ratifications by the states and would be effective upon ratification by 9 states.

      3. How legitimate was the process by which they created the constitution under the Articles?

2. Issues in Drafting the Constitution

   1. Characteristics – trouble spots that were identified after drafting

      1. Consolidation of power

      2. Aristocracy – rotation in Articles was to avoid creating a national elite of politicians

      3. Representation – ratio of 30,000:1 was not seen as very representative

      4. Separation of powers

      5. Judicial tyranny – federal courts v. role of state courts

      6. Absence of Bill of Rights

      7. Federal gov’t with taxation power

      8. Creation of standing army

      9. Executive as created was too powerful and their weren’t any term restrictions – elected not directly by the people, but through an electoral college. Fear was of creating a monarchy. Idea of this person having a special title really went against system at the time.

   2. Questions of federalism and structure

      1. What was distribution of power between states and federal gov’t – Article I lays out number of specific powers that Congress would have.

      2. But doesn’t have what Articles had – unless something was specifically on the list, Congress wouldn’t have that power. Article I Section 8 says that Congress can do anything necessary and proper to do what it needed to within its sphere of power.

      3. Preemption - Can states act if Congress doesn’t act? Relationship between grants of power to Congress and state gov’ts.

      4. Many elements of anti-federalist groups are taken up by Republicans, which included Jefferson and Madison. They find themselves over time arguing for a more limited version of federal power, even though they were originally major proponents of constitution. The fact that a political party developed out of this. Political parties are central to the way government is run, but the framers did not contemplate the formation of parties.

      5. In the election of 1800, heavily partisan election was held between the Federalists and the Republicans, who were both framers of the Constitution. The framers were at each other’s throat and did not have a unified vision of what the country would be.

         1. There was a substantive and somewhat class-related split – noone anticipated the extent to which constitution would be used to create a national economic infrastructure that would shape country in years to come – industrialist and speculative capitalist market – shaping of national character.

         2. They signed off because each saw in it their vision of what the country could become.

         3. Federalists and Madison – fast, speculative, economic development with international trade with Britain and France. And Jefferson, who thought it would be destructive to the country and wanted to maintain loyalty to France.

      6. Framers created a document that was difficult to amend, much more difficult than statutes.

      7. Federalists saw structure as protector of individual liberty. Argued under Korean war that harnessing steel companies was unconstitutional – executive could not exercise that power.

      8. Federalism and separation of powers coming together – how does placing a particular power in a particular branch protect or deny power to the states? If the legislature is profoundly hostile to the interests of the states, then states rights proponents would want to place more power in the hands of the judiciary.