The Constitution and the fight

for ratification

The Logic of American Politics

Chapter Two: The Constitution

Review

• Theory and tools

• Delegation – its advantages and potential disadvantages

• Majority rule and representative government as an attempt to strike a good balance between transaction and conformity costs.

• Specifics: the founding of the country

• Why declare independence?

• A new balance of costs – raising transaction costs to minimize conformity costs

• Free rider problems in the war effort

• Struggles after independence

• The need for a new system of government

Two Competing Plans

Virginia Plan New Jersey Plan

Representation in

legislature based on a

state’s population.

Representation equal

among states.

Unitary executive Plural executive

Stalemate over Plans

• Weeks of debate.

• Key sticking point – basis of representation.

• Sent to committee to resolve.

The Great Compromise

• Written by Roger Sherman of Connecticut

• A 2 chamber legislature

– Lower chamber – The House of

Representatives. Elected by the people.

Apportioned on the basis of population.

– Upper chamber – The Senate. Selected by state

legislatures. Equal representation from each

state (two Senators per state).

Separation of Power

• The compromise accepted, Madison turns

his attention to checks and balances and

separation of power.

• Idea comes from French philosopher

Montesquieu who argued that government’s

power could be effectively limited by

having separate legislative, executive and

judicial branches of government.

Separation of powers

• Separation of powers

– Executive branch – President

– Legislative branch – Congress – House and

Senate

– Judicial Branch – Supreme Court (and federal

courts)

Designing the Executive

• Many of the founders were afraid of executive power, especially when held by a single individual.

• One of the most debated issues at the Constitutional Convention despite widespread agreement that George Washington would be the first president.

• Proposals ranged from Alexander Hamilton’s single, powerful executive elected for life to a plural executive selected by the legislature for short time periods with very limited power.

Designing the Judiciary

• Objects of debate:

– Who would appoint Supreme Court justices –

the president or the Senate?

– Should a network of lower federal courts be

created or should state courts handle all cases

until they reach the federal Supreme Court?

The Issue of Slavery

• Later in the convention some southern delegates

insisted on 2 guarantees for their “peculiar

institution” as conditions for remaining at the

convention and endorsing its result:

– Unrestricted right to continue importing slaves

– Return of runaway slaves in northern states

• Result: Assurance that importing slaves would not be

banned before 1808 and agreement to return runaway

slaves.

The Issue of Slavery

• Why did the more numerous northern delegates

give in to the southern ones?

– Need to get the Constitution passed

• South threatening to defect if demands weren’t reached

– New England states got something they wanted in

return

• A “logroll” occurred – the South dropped its opposition to

commercial issues important to New England such as the

ability of Congress to raise taxes on imports with a simple

majority vote

Amending the Constitution

• The Articles of Confederation had required

unanimous consent to amend them.

• Amendment procedure adopted can be seen

as an effort to balance transaction and

conformity costs.

• Also a compromise between nationalists

and states’ rights delegates.

Amending the Constitution

Adopting the Constitution

• Article VII provided the procedure

• Must be adopted by the conventions of 9 of

the states

– Eliminated unanimous consent required under

Articles of Confederation.

– Withdrew authority for approval from state

legislatures who might be reluctant to agree.

The Fight for Ratification

• 3 of the delegates at the convention refused

to sign the Constitution – Edmund

Randolph, Elbridge Gerry and George

Mason

• Some prominent political leaders had

refused to participate in the first place

The Constitution as Object of

Debate

• Debate was not limited to the state

conventions

• Two groups

– The Federalists

– The Antifederalists

The Antifederalists

• Included Patrick Henry, Richard Henry Lee,

George Mason, James Monroe, Samuel

Adams and George Clinton

• Opposed the Constitution

The Antifederalists

• A more heterogeneous group than the

federalists

• United by opposition to Constitution but not

in support of an alternative

• Writings appeared in newspapers and

circulated in pamphlets

The Antifederalists

• Got stuck with the name Anti-federalists when their better organized opponents took the name federalists

• Saw themselves as the true federalists because they ascribed to the principles of federalism set forth in the Articles of Confederation

• Preferred a decentralized federal system of government with the states above the national government

• Pro-states’ rights

The Antifederalists

• Recognized some need for change but by

and large defended the status quo

• Thought that the Philadelphia convention

had overstepped its bounds

The Antifederalists

• Afraid the national government would usurp

the power of the states

• Thought the Constitution had aristocratic

tendencies

• New governmental system too complex

The Antifederalists

• Not opposed to union

• Thought that true democracy only works in

small, homogenous republics

• Saw the United States as too large and

diverse to be under a single set of laws

The Antifederalists

• Thought there needed to be explicit

safeguards against tyranny

• Called for a bill of rights to be a part of the

Constitution

The Federalists

• The Federalist Papers

• Originally published in New York

newspapers under the pen name Publius

• Written by 3 men – John Jay, Alexander

Hamilton, and James Madison

The Federalist Papers

• 85 essays

– Jay wrote 5

– Hamilton wrote the most

– Madison wrote the most famous and arguably

the best

• Provide insight into the intent of those who

wrote the Constitution

The Federalists

• Nationalists

• Pro-federation not necessarily pro-

federalism

• Actively supported the Constitution and

argued for its ratification

The Federalists

• Two of the most famous Federalist papers

are #10 and #51

• Both were written by James Madison

• Focuses on the fundamental problem of

self-governance

Federalist No. 10

• Madison explores the likelihood that a tyranny of the majority would arise in a democracy and identifies a solution.

• Goal: to design a republic so the majority can’t tyrannize the minority

Federalist No. 10

• Responds to the strongest argument of the Antifederalists -- that a “large Republic” cannot long survive.

• Discusses the negatives of faction defined as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Federalist No. 10

• Madison identifies two ways to eliminate factions

– authoritarianism – worse than the disease

– conformism – impractical

• So if the causes of factions cannot be removed,

then one must control their effects

Federalist No. 10

• Two kinds of factions

– Minority

– Majority

• Argues that minority factions are not a

threat in a democracy.

Federalist No. 10

• A direct democracy would allow the

majority to tyrannize the minority

• Solution – representative government

Federalist No. 10

• How representative government prevents

majority tyranny:

• Dilutes factious spirit – to get elected have

to appeal to a diverse constituency

Federalist No. 10

• Bigger is better

• Turns the antifederalist argument that small republics are better on its head. Instead, Madison says small is dangerous.

• A large population and territory makes it harder for potential tyrannical majorities to arise and to collude against a minority interest

Federalist No. 51

• Argues that the system is designed to avoid

usurpation of power

• By separating government officers into

different branches (separation of powers)

and giving them the authority to interfere

with each other’s actions (checks and

balances) they could defend the integrity of

their offices.

Checks and Balances – shared power

Examples:

• Congress passes laws but the president can veto and the court can declare them unconstitutional

• Presidents appoint but the Senate must confirm

• Congress can impeach and remove the president and federal judges

Federalist No. 51

• Solving the delegation problem – keeping

agents honest

• Ambition is made to counteract ambition…

The Federalist Papers

• Madison probably didn’t agree with

everything he wrote

• Helped convince those undecided about the

Constitution that the system would not give

rise to a tyrannical government

The Road to Ratification

• December 7, 1787 Delaware ratifies 30-0

• December 12, 1781 Pennsylvania ratifies 46-23

• December 18, 1787 New Jersey ratifies 38-0

• December 31, 1787 Georgia ratifies 26-0

• January 9, 1788 Connecticut ratifies 128-40

• February 6, Massachusetts ratifies 187-168

• April 26, 1788 Maryland ratifies 63-11

• May 23, 1788 South Carolina ratifies 149-73

• June 21, 1788 New Hampshire ratifies 57-47

The Road to Ratification

• With the New Hampshire vote, the

Constitution officially took effect.

• But without New York and Virginia, two

large and centrally located states, the new

government wasn’t given much of a chance.

The Road to Ratification

• June 25, 1788 Virginia ratifies 89-79

• July 26, 1788 New York ratifies 30-27

• November 21, 1788 North Carolina ratifies 194-77

• May 29, 1790 Rhode Island ratifies 34-32

An Antifederalist Legacy: the

Bill of Rights

• Madison had agreed to write one and

introduce it at the first congress to help get

the Constitution ratified

• Bill of Rights introduced in Congress

September 9, 1788.

• December 15, 1791 Bill of Rights ratified

and becomes part of the Constitution

The Federal System

The Logic of American Politics

Chapter Three: Federalism

Federalism

• Federalism is a hybrid system mixing

elements of a confederation where lower

level governments possess all real authority

and unitary government in which national

government has a monopoly on

constitutional authority.

Sources of Power

American-style federalism

• In a federal system, authority is divided between

two or more distinct levels of government.

• In the United States, the division is between the

national (federal) government and the states

• Before adopting a federal system in the

Constitution, the nation had experienced unitary

government while under British rule and a

confederation under the Articles of Confederation.

Characteristics of Federal

Systems A government must have constitutional relations across levels

and interactions that satisfy three general conditions:

1. The same people and territory are included in both

levels of government.

2. The nation’s constitution protects units at each level

of government from encroachment by the other units.

3. Each unit is in a position to exert some leverage over

the other.

The Federal System in the U.S.

• Some people consider the U.S. federal system to have 3 levels but that is not accurate.

• National and state government have a federal relationship.

• State and local government have a unitary relationship.

• Local governments are established by the states and operate under state authority. They do not have independent constitutional authority.

Review

• Fundamentals and logic of United States’

institutional design

– Limiting power

– The role of compromise

• Introduction to federalism