CHAPTER FIVE: Constitutional Convention As a result of the problems experienced under the Articles of and Ratification Confederation, a meeting of representatives of all thirteen states was 5.1 The Constitutional called in 1786. Only five states showed Convention (Summer, 1787) up. Congress and each state were asked, 5.2 The Fight for Ratification – then, to send representatives to a meeting that was to be held in (1787- 1789) Philadelphia in 1787. The purpose was to 5.3 The Anti-Federalists change the Articles of Confederation and to strengthen the national government. Opposition Congress gave the state delegates 5.4 The Ratification of the only the authority to develop a plan to Constitution improve the Articles of Confederation. The report would then be sent back to KEY CONCEPTS AND VOCABULARY Congress. Fifty-five delegates attended the framers (no, NOT farmers!) • meeting which later became known as the • delegates Philadelphia Convention. From his • Federalist Papers Ambassador position in Paris, Thomas • ratification Jefferson wrote to John Adams that the • Federalist convention “really is an assembly of • Anti-Federalist demigods.” We now call these 55 men the • Plan framers of the Constitution. Jefferson did • bicameral legislature not take part in the drafting of the • executive branch Constitution. The average age (excluding Ben • judicial branch Franklin, who at 81 skewed the average) • federalism was forty-two, relatively young for such • an important assembly. One delegate was • amendment only twenty-six. Franklin, the oldest, and • Compromise most respected American throughout the • three-fifths compromise world, was carried to his post on the • enumerated powers convention floor by four local prisoners. • necessary and proper clause Most of the fifty-five delegates had • clause considerable political experience; many • had attended the Second Continental • ex post facto laws Congress that created the Declaration of • advise and consent Independence. Although none of the framers were poor, and some of them • appropriation power quite rich, they were all said by a French override • diplomat to be “in easy circumstances.” • All were white and male. There were six • electoral college large plantation owners, eight important • judicial activism businessmen, three doctors. About half • status quo were college graduates – quite high for • factions that time. Seven were former governors • majority / super majority of their states; thirty-three were lawyers. • agrarian George was the • Bill of Rights acknowledged leader, even though he did not want to attend, but gave in when he

was convinced any change would not 5.1 THE CONSTITUTIONAL occur without his presence. He was CONVENTION (Summer, 1787) elected to preside over the convention. in Philadelphia,” refused in principal to He seldom spoke in debates. attend. Young (36 years old) ’s notes are considered the The First Steps and the : “official” notes of the proceedings. They were not published until 1836 – after his The Convention had a quorum – death. At only 36, he was a driving force enough people present to do business – at the convention, bringing the “Virginia on May 25, 1787. Almost immediately the Plan” that set the tone for the debates framers agreed on a few things: that followed. For his work he is often referred to as “The Father of the • They decided that the Articles were Constitution.” so defective that they should start The long, hot summer, the hall with from scratch and work on a new closed shutters (for secrecy), the Constitution. political intrigue and pressures – all of • They adopted a rule of secrecy, to these weighed heavily on those encourage free discussion, a attending the assembly. Even among minimum of public turmoil, and to this “assembly of demigods” some of the enhance its likelihood of passage. leaders stand apart. • They also decided that each state, It was Madison, along with Alexander regardless of delegation size, and John Jay who wrote the should receive one vote when letters to newspapers called The voting on different aspects of the Federalist Papers. The letters helped creation of this new Constitution. to explain the arguments in favor of creating a new constitution. Madison, Hamilton and Jay used their extensive PROBLEM 5.1A knowledge of ancient governments and Evaluate the pros and cons of the two political theory to lead the debates in crucial decisions made at the beginning of both the convention and in their letters the convention: abolishing the Articles, to the newspapers. and the rule of secrecy. If a new Hamilton supported a strong national convention were called today, would government. (If he had had his way, we these same rules be adopted? Why or would have a President who serves for why not? life with absolute power over every act of the Congress.) He left the convention The creation of a new Constitution in a huff, but returned to sign the final began with a first session at which only document and argued brilliantly for its seven of the thirteen states had delegates passage. present. By the end of the convention Other major political figures were not every state except Rhode Island was as supportive of a strong central represented. However, it was not easy: government. , who remember, for many years these separate authored the Virginia Bill of Rights, was ex-colonies-now states thought of a strong supporter of the people’s rights themselves as separate entities, separate and of states’ rights. He opposed any countries. To come together now, to document that did not have a strong perhaps give some of their power up statement of these rights and he fought (especially a small state like Rhode against the ratification, or passage of Island) to an unknown entity, the national the Constitution. government, was a scary prospect to say Along with Jefferson, other prominent the least. figures from the fight for independence Madison took the initiative early in the were not in attendance. Thomas Paine convention and had Virginia Governor was in France; John Adams in England; bring forth the so- Patrick Henry, who said he “smelled a rat called Virginia Plan. The plan, contained in fifteen resolutions, proposed a truly that each state, no matter how many national government. people lived in it, would have the same Under this plan, there would be a number of representatives and votes. bicameral national legislature (two- Thus, at least in the Senate no state branch, or two-house legislature). The would have more power than any other voters would choose the representatives state. to one (lower) house directly. The other For more than two weeks the Virginia (upper) house would be itself chosen by Plan was debated. Finally, delegates from the lower house from nominations from New Jersey, a small state, came up with the state legislatures. Representation what is called the New Jersey Plan. would be proportional to population (thus, favoring the larger states…such as The New Jersey Plan: Virginia), and it could void any state law. In addition to the legislature, there William Patterson, of New Jersey, on would be two other branches of June 15, proposed what amounted to an government under this plan. The amendment (a change that is added on) executive branch (a president) would to the Articles of Confederation. Under be elected by the legislative branch. The this plan, there would be, as with the judicial branch (judges, court system) Articles, a one-house legislature; each would be selected by the legislature. state would get equal representation and There would be divided authority – votes in that house, and it would have what we call today federalism – in that increased authority. Congress (this one- a citizen of the United States would also house legislature) could pass laws be a citizen of their specific state. This affecting more than one state and other “dual citizenship” concept survives countries. Its taxing powers were today. increased, its laws and treaties would be The new national government would considered the supreme law of the have the power to collect its own taxes, country, and no state could make laws to make laws, and to enforce them in its that were contrary to Congress’ laws. own courts. With the Articles of Confederation, remember, the central PROBLEM 5.1B government could only request money, Can you name any laws, or types of laws, for example, and only states had the that are different from state to state? authority to raise that money by placing How about any laws that are different taxes upon their citizens. This would no between state and federal government? longer be a problem under the Virginia What might these differences mean? Plan. There was considerable debate In addition, the executive branch among the framers over the Virginia would be a group of several people, Plan. Most agreed that representation in selected by Congress to carry out national the House of Representatives (what the laws and appoint other necessary office lower house in the Virginia Plan was holders. Further, the members of this new called) should be based on population. executive branch would appoint a The main disagreement was about how supreme court to handle conflicts about many representatives each state could treaties, inter-state or international trade, have in the Senate (the upper house). and how taxes were to be dealt with. The bigger and more populous states Debate continued for another month. wanted the Senate also to be based on There were still major issues that proportional representation. Larger underlay the debate between the two states would have more votes, and plans. Without resolving these hence, more power, than less populated fundamental issues, the convention would states. soon fail. Delegates threatened to leave; The smaller and less populated states some did leave such as Hamilton. The wanted the Senate to be organized so issues that remained to be resolved were: power in appropriating tax money, that • What powers should the this referred to their understanding of the national government have? concept of certain government bodies • How should the number of being “closer to the people.” The House, representatives from each by virtue of having proportional state be determined? representation, represented the people more “closely:” each delegate represented less people than the two The Critical Issue of Representation: senators who, numerically, at least, The issue of representation represented half of their state’s threatened to split the convention and population. The House representatives, send it home early. Against the wishes of therefore, were “closer to the people.” James Madison, a person from each And they wanted the government body state formed a special committee to try that was closer to the people to be in to resolve the issue. The result was the charge of issues and laws that would so-called Great Compromise, also known require the taking of taxes from the as the . It people. provided that: The Connecticut Compromise was debated heatedly, especially by delegates • Each state would get equal of the larger states such as Madison. representation in the Senate. Some members left the convention in State legislatures would choose disgust. In the end, it passed by only one the two senators from each state. vote. • Membership in the House of Representatives would be based PROBLEM 5.1C on the population of that state – proportionally. Create a chart that compares each of the • Appropriation bills (proposals for Plans mentioned above (the Virginia Plan, laws that would require the New Jersey Plan, and the Connecticut government spending of tax Compromise plan). Compare the plans in money) would have to begin in terms of what they each proposed about the House of Representatives. the organization of government (how • Smaller states would benefit from many branches, what those branches equal representation in the would do and how they were elected, and Senate. The Senate would have what their make-up would be, etc.). important responsibilities alone, separate from the lower house, such as treaty ratification and The Issue of Slavery: appointment approval. The larger Part of the Connecticut Compromise states would be well-represented was the so-called “Three-Fifths” in the House of Representatives. compromise. • Legislation would have to be Connecticut’s Roger Sherman dealt approved by both houses of with the thorny issue of whether slaves Congress. There would be, then, a should be fully counted in the census to “check” on the power of each determine the number of representatives branch of Congress by the other. in the House states would get. To do so would give the slave states – all states, It should be understood, here, except Massachusetts allowed slavery, that representation meant voting power. although the institution was concentrated The more representatives a state has, in the south – many more representatives the more power in votes in the Congress in the House of Representatives. The that state has. It should also be noted northern states objected to this. that when they spoke of, for instance, Sherman’s plan said that three-fifths (a the lower House being the source of rounded-off fraction of a little bit more than one-half) “of all other persons” – and proper” for carrying out the meaning other persons besides white enumerated powers. This is called the Americans – be counted for necessary and proper clause, or representation purposes. sometimes, the “elastic clause.” Many delegates wanted slavery banned altogether. Charles Pinckney of PROBLEM 5.1E South Carolina led the southern opposition to a ban. In the end, to Can you name some laws or powers that ensure those states’ acceptance of the might fall under the heading, “necessary Constitution, further compromise was and proper for carrying out the reached that forbade Congress from enumerated powers”? touching the slave trade until at least 1808 – twenty years. Also, escaped slaves were to be returned to owners in The Issue of dealing with the States: slave states. All of this compromise was By now all of the framers agreed that fashioned without, as it turns out, even they had to create a national government mentioning the word “slavery” at all in that had more power than it had under the actual Constitution! the Articles of Confederation. However, Had the framers not compromised they did not agree about how much and equivocated on the issue of slavery, power it should have over the state it is likely there would have been no governments and their citizens federal Constitution. (Remember two things: first, their history of their allegiance to their own The Issue of a Congress: colony/state; and second, that the It was important to the framers that government that is “closer to the people,” the new government be limited in its in this case, the state and local power to only those powers specifically governments versus the central, national given to it: these powers are called the government, is better, and should have, enumerated (or listed) powers. Powers ideally, more power.). This area was not specifically given to the government among the touchiest for these in this “list” of powers would not be representatives of the states. powers that the government could The primary solution that was finally assume. adopted was the creation of a truly national government with the authority to PROBLEM 5.1D act directly on the people. This meant that the national government was no Why, do you think, this was so important longer dependent on the states for the to the framers? What were they afraid collection of the taxes it proposed or the of? What was their experience telling enforcement of the laws it passed. The them? framers also included a number of phrases or clauses in the Constitution In Article I, Section 8, of the that set forth the powers of the national Constitution, it lists what Congress can government over the state governments do. It includes such important matters as and the people. Some of the most the power to impose and collect taxes in important of these are listed below: order to “pay the debts and provide for the common defense and general welfare 1. Article VI contains the supremacy of the United States….” It also included clause. It states that the the power to declare war and raise an Constitution and all the laws made army and navy. by Congress are the supreme law In addition to the powers the framers of the land. specifically listed for Congress, they 2. Article IV of the Constitution gives added at the end of the list the power to the national government the make all other laws that are “necessary authority to guarantee each state the delegates to the Philadelphia a republican form of government. Convention. 3. Article IV also requires the national government to protect Slavery in the Constitution: the states from invasion or Discussed above are the compromises domestic violence. made in an effort to keep the southern states in this new national union. The These protections signify a sense of framers took great pains to forge a union supremacy of the national government. of all the states, and to do this, it took a The idea of “guaranteeing a republican realization that slavery could not be form of government,” or “requiring the abolished or restrained at this time. The national government to protect,” implies framers were willing to set that debate for a relationship between the national and the future. state government where the national is dominant. The powers of the executive and The Constitution also limited the judicial branches state governments in some more specific Seeking the proper balance between ways: legislature and the executive branch took 1. Article I, Section 9 is, basically, a much time and thought for the framers. list of the powers that state Still fresh in their memories were the governments are prohibited from abuses by colonial governors and the exercising; the state governments corruption of the King of England. More cannot: recently, under the Articles of • create their own money Confederation, executive branches were • pass laws that enable not able to check the powers of the state people to violate contracts legislatures. such as those between The difficulty of organizing the creditors and debtors executive branch raised the thorny • make ex post fact laws – questions of who should make up the laws that which make acts executive branch (such as having more crimes even though the acts than one president), how long a term were legal at the time they should it/they serve, what powers should were committed the executive have, and how should the • make treaties with foreign executive be elected and re-elected. nations, declare war, or The framers easily agreed that there grant titles of nobility should be a single executive to avoid the possible problem of conflict between two 2. Article IV prohibits states from: leaders of equal power. Also, it would be • unfairly discriminating easier to keep an eye on just one against citizens of other executive, so long as the powers were states checked. • refusing to return fugitives Many lengths of terms were from justice to states from considered, including a single term of which they have fled seven years, but the Constitution sets the President’s term at four years. Given the The Great Compromise – some relatively short length of four years, no historians call this really a “Sectional limit was originally set as to the number Compromise” – had finally settled the of terms a President may serve. Tradition disagreement between the large and – and eventually a constitutional small states over how many amendment – has now set the maximum representatives they could send to the number at two terms. Senate and the House of The executive branch, headed by the Representatives. But there were other President, was given the responsibility for serious issues, still unresolved, among carrying out and enforcing the laws made by Congress, negotiating treaties with Congress to decide as the nation evolves. foreign nations, appointing various officials, and conducting wars as Selecting the President: The Electoral Commander-in-Chief. College The presidential powers were Many procedures were debated at the checked and balanced in a number of convention as to how to elect a president. ways. Although it was commonly felt that The president had the right to would be the first nominate persons to fill executive and president, the specter of future presidents judicial offices (such as the President’s caused the delegates much concern. cabinet, and federal judges, including A convention committee was the Supreme Court), but the Senate had delegated the job of weeding through the the right to approve or disapprove of the different proposals. The committee persons the President nominated. This generally did not trust the judgment of power given to the Senate to check the the people of America. The delegates felt executive’s nominating powers, is called too few people would vote for the the power to advise and consent. common good, that loyalties closer to The Senate has the power to approve home would prevail. Also, the new (with a two-thirds vote) a treaty entered country would be quite large, and most into by the President. people would not know much about some While the president is the of the candidates. Commander-in-Chief, only Congress had The compromise agreed upon created the power to declare war. Further, a uniquely American organization called Congress controls the money necessary the Electoral College which was given to wage a war. This is called the the responsibility of electing the “appropriation” power of Congress. president. The main parts of the plan The president can veto a bill passed were: by Congress, thus voiding the bill, but Congress can vote (with a two-thirds 1. Members of the Electoral College, vote) to override the presidential veto. called electors, would be selected from all Finally, Congress can impeach the of the states. A state’s number of electors president. The House of Representatives would be the total of its number of would bring charges of representatives in Congress (its number (the term “impeach” means to “accuse”), of representatives in the House of by a majority vote, and a trial would be Representatives, plus two – every state’s held in the Senate. It requires a two- number of Senators). The methods for thirds vote by the Senate to remove a selecting electors would be decided upon president. by each state legislature. In spite of these details, if you look 2. Each elector would vote for two closely at Article II (the section of the people, one of whom could not be a Constitution that deals with the resident of his state. )This would attempt executive branch of government) you to force the state to vote for at least one will see that it is short in comparison person who might not represent its with Article I (the section that deals with particular interests.) the Legislative branch). It speaks of 3. The person who received a majority of “executive power” but it does not define votes in the Electoral College would it. Section 3, of Article II, seems to give become president, and the person with the president power to suggest the next largest number of votes would legislation, which is not an executive become the vice president. power. Executive departments (the 4. If no one received a majority of the “cabinet”) are mentioned, but there is no votes in the Electoral College, then the provision for creating them, deciding House of Representatives would select the how many there should be, or how they president by a majority vote, with each should operate. This is left up to state having only one vote. The Final Document This compromise was quickly The Constitution of the United States approved by the framers. Many felt that was signed on September 17, 1787, by in almost all future elections for thirty-nine of the original fifty-five president the final decision would be delegates. Three delegates refused to made in the House of Representatives. sign the final document. In the final However, only twice has a presidential analysis, what had been created could be election gone to the House – in 1800 and summarized as a document that: in 1824. Today, the Electoral College is still in existence, although it functions • created a republican form of quite differently from the way it did government in which people chose then. representatives to make political decision for them; The Judicial Branch of Government • created a limited government, with To complete the system of checks written restrictions on power; and balances the framers had to plan the • created a federal system in which judicial branch. They created the states kept certain rights; Supreme Court, with the numbers of • separated national power into justices who would sit on the Court left branches, with checks and balances up to Congress. The Supreme Court among those branches; and would decide conflicts between state • allowed for popular sovereignty governments and conflicts that involved (individual citizens’ right to vote). the national government (either with other states, or with other nations). It was, in some respects, a series of The Supreme Court would hear cases compromises, woven together to ensure appealed to it (called, having appellate passage at the convention. But it was jurisdiction), and a few rare cases which more than that. It was a vision of how a would go directly to it. This is called diverse people could live together. The “original jurisdiction.” delegates went home knowing they had An important concept to the framers not created a perfect document. They had was “judicial independence.” Judges, argued and dissected the pros and cons of they felt, should be insulated from each word and idea in the Constitution; politics, free to rule based on their best they knew all of the arguments and were judgment. To do this, they provided that in good position to argue for its passage. federal judges would be appointed, not The next job? Could they convince the elected (and, to ensure a balance of people at home? powers between the branches, these appointments by the executive branch had to be approved by the Senate in the Legislative branch). Further, judges would serve lifetime appointments, 5.2 THE FIGHT FOR RATIFICATION “during good behavior,” subject only to (and The Federalist Papers) impeachment and removal from office for “treason, bribery, or other crimes and James Madison convinced the framers misdemeanors.” that the new Constitution should be The argument over “judicial presented and debated at special ratifying activism” continues to this day. How conventions to be help in each state. It independent are judges? Should they was universally felt that if the vote were listen to their constituents, or be left up to the state legislatures – or to the oblivious to the political issues of the old Congress under the Articles of day? Confederation – the new Constitution would not be ratified. The delegates to these state ratifying conventions would be elected by popular vote of the people in that state for the sole purpose of later changed it to Publius, and received approving the Constitution. The new support from James Madison and John Constitution would then take effect when Jay. This defense of the Constitution in it had been ratified by the conventions of the form of these letters is known today nine states. (Remember, though, how as the Federalist Papers. It is eighty- the Independence convention felt about five essays – fifty-one probably written by ratification of important issues such as Hamilton, twenty-nine by Madison – on going to war, or in this case, ratifying a the nature of government and the new Constitution….). American political vision. Supporters of the new Constitution Hamilton’s essays interpreted the took the name Federalists. Those who specific provisions of the Constitution. attended the Constitutional Convention They explained the reasoning and the had an advantage, having been at the practical implications of the terms in an Convention, having heard the arguments attempt to ease people’s fears. Madison and honed their own points of view. argued about the best way to organize They moved quickly, with their power the new government and about how to and prestige to become elected deal with the growth of special interest delegates to the state ratifying groups – what he called factions - conventions. around the new nation. The Federalist The opponents of the new Papers is the most important work ever government had to take the name “Anti- written by Americans on the basic Federalists,” with all of its negative principles and ideas underlying the connotations and implications. They philosophy of our Constitutional downplayed any compromises that might government. weaken their arguments. Because they took so many different approaches to The Political Theory of the Federalist their opposition to the Constitution, they Papers: or, the Federalist Argument often appeared unorganized and in Favor of the Constitution: incoherent, sometimes contradictory. But, they had the advantage of The importance of the Federalist advocating for the status quo. There Papers is in the theory of government were many people fearful of a change, they advocate. The essays themselves especially brought about in secrecy were, at the time of the ratification, less behind closed doors in Philadelphia. important in the ultimate passage of the The Anti-Federalists included some of Constitution than was face-to-face debate the most famous patriots of the and deal-making in the state conventions. revolution. Samuel Adams, Patrick However, copies of the essays were used Henry, George Mason, Elbridge Gerry, by the debaters at the ratifying Mercy Otis Warren and others argued conventions around America. the view that liberty is best contained in Many people recognized the small societies (i.e., more local significance of the Federalist Papers soon governments, such as the states). A after the essays were published. Thomas large republic would not be practical, the Jefferson, for example, wrote to James Anti-Federalists said. It would take away Madison and described the Federalist liberty, not enhance it. The Constitution Papers as “the best commentary on the said nothing about such liberties as principles of government…ever written.” freedom of the press, religion, and The Constitution, after all, is a speech; freedoms that were cherished relatively short, concise document. In by all Americans. attempting to understand the meaning of To combat the Anti-Federalist those few words, early constitutional arguments, Hamilton began writing interpreters have looked at the “public” letters to three New York newspapers intent of the framers – what they said in that were widely reprinted elsewhere. He public – to try to gain some wisdom about took the pen-name name Caesar, but the meaning of the document. The most obvious interpretation would be that In Federalist #10 (the essays in The given by the framers who wrote the Federalist Papers were numbered), Federalist Papers. Thus, the early Madison goes into great detail describing Supreme Court supported looking at this how factions – groups of people who have collection of essays to interpret the a special interest in common – operate in Constitution: a government. Although Madison see the possibility of the factions working against “The opinion of the Federalist national interest, he predicts that the new [Papers] has always been government, which he calls the considered as of great authority…. “republican government,” will be so These essays [were] published while constructed that no single faction could the constitution was before the gain control. nation for adoption or rejection.” (Cohens v. Virginia, 1821) PROBLEM 5.2A Read the selection given to you from The lessons of the Federalist Papers Federalist #10. See if you can find out are best judges within the outline of why Madison feels the republican form of American history. They are central in the government will keep the evil influences ongoing debate about the purpose of of factions to a minimum. Look for government, the extent to which provisions that try to keep any group of government itself is a good or bad thing, men from gaining too much control. How and how to encourage the ultimate does he say a government can be achievement of liberty. organized so it would not be dominated by self-interested individuals or factions  The main arguments that the at the expense of others? Federalists made for their position – in proposing this balanced, divided, and 2. Government can be properly limited government – were: organized to protect basic human rights. 1. Basic rights cannot be protected The Federalists maintained that a by “civic virtue” alone. system of representation, checks and Philosophers have debated as to balances, and could whether the nature of humans is be devised that would protect the rights basically good or basically evil. The of everyone. They argued that the new Federalists argued that there are great Constitution was just such a document. dangers to the liberties of everyone Senators and the President would be when a few people act totally out of their elected not by the people directly, but own selfish interests at the expense of rather by the representative of the those others. The framers believed that people. This would ensure a higher it was unrealistic to expect people in a degree of wisdom in the choices of these large and diverse nation, living hundreds important political leaders. of miles apart, to be willing to give up At the same time the representatives their own interests for the benefit of in the House of Representatives would be others. chosen directly by the people, ensuring This search for civic virtue, to act in their interests would be validated. the interest of the common welfare In these ways, no one faction or group rather than out of selfishness is at least or individual could amass enough power as old as Plato’s Republic. Philosopher to manipulate its selfish interests away Thomas Hobbes suggested that since from the common welfare. people were basically evil, proper At the same time that representation government should exist to keep people is diffused (or dispersed, or separated) in from harming each other and the this manner, the various branches of restraint of liberty is most appropriate to government would be able to check and do this. balance each other as well. No bill would be accepted until it passed both houses home, and would be elected every two of Congress. Even then, the President years allowing for relatively quicj must sign it, or, if a veto occurs, replacement if the fail to properly Congress still can pass the bill provided a represent the local interests. Since money super-majority agrees. bills (bills of appropriation) must start in The power of appointment to judicial the House, these local financial interests and executive offices, the power to make would be represented there. The Senate treaties, as well as the power to make would protect the people’s state interests, laws are all shared and balanced since it would be elected by state between the branches of government. legislatures and not the people directly. This allows for no one group wielding too b. The Executive branch. The much power. President would protect the people’s The Federalists also diffused the national interests, since he would be power of factions through dividing the elected by electors selecting him from power of the states. Now citizens would among nationally recognized leaders. This serve two sovereigns: the state as well is achieved by forcing electors to cast as the national government. Each of some of their ballots for candidates from these two powers would have distinct, outside their own state. enumerated powers, and yet they would share some powers as well. PROBLEM 5.2C The large size of the nation, the In Federalist #70, Hamilton discussed the Federalists argued, would make it powers and duties of the President under particularly difficult for any one faction to the Constitution. He argued for a strong attain a majority, and thus dominate. Chief Executive. What are his key points? Since so many interests and factions would be represented in the national c. The Judicial branch. The government, it would be less likely that Supreme Court, with lifetime job security, any one of them would prevail. is designed to be independent of political Any amendments to the basic manipulation by factions. Constitution would have to be validated by a super-majority (three-fourths) of 5.3 THE ANTI-FEDERALIST the individual states. Even a relatively OPPOSITION small interest group of states could veto any change to the Constitution. Anti-Federalists vehemently criticized the Constitution of 1787 and urged its PROBLEM 5.2B rejection by the people. Some of them, Read Federalist #39 and #51 in which however, were willing to accept the Madison talks of a “multiplicity of Constitution upon condition that a Bill of interests” that characterize a free Rights be added to it. society. He concludes that a federal While the Federalist Papers appeared system of government is the best for “all as a collection a short time after the the sincere and considerate friends of publication of the essays in newspapers, republican government.” Do you agree? large collections of Anti-Federalist writings Explain. did not appear until much later. The Anti-Federalists feared that giving 3. The construction of the so much power to a national government government will allow for the might be a serious threat to their rights representation of different interests and welfare. Most Americans were very to protect basic rights. suspicious of government, but the Anti- a. The Legislative Branch. The Federalists were especially mistrustful of House of Representatives would protect government in general and strong the people’s local interests, since national government in particular. representatives would be chosen from small congressional districts, close to 2. It did not include a bill of rights.

PROBLEM 5.3A PROBLEM 5.3C Recall the discussion of Madison’s Read Patrick Henry’s “Need for a Bill of Federalist #10 about factions. Now read Rights,” and William Lenoir’s “The Need to the Anti-Federalist selection by Limit Powers of Government.” Write a Melancton Smith on “Representation in short speech expressing the wishes of Government.” With whom do you agree? these two Anti-Federalist writers. Explain your reasoning.

Anti-Federalists, like the Federalists, 3. It should have been developed in believed in the basic ideas of meetings whose proceedings were republicanism and representative open to the public. government. The sheer size of the newly constructed national government was a concern to the Anti-Federalists. So was 4. It “constitutionalized” slavery. the scope of the power of the new national government. PROBLEM 5.3D In addition, it was widely believed Read Joshua Atherton’s “We Become that people living in small agrarian Consenters to, and Partakers in, The Sin communities would be more likely to and Guilt of this Abominable Traffic.” Do possess the civic virtue required of you think his arguments were a universal republican citizenship. concern of all Anti-Federalists? Why or would write, in his only book, Notes on why not? the State of Virginia, about the inherent virtue of farmers as opposed to those living in big cities. This has come to be 5. The Constitution was developed by known as the “agrarian ideal.” It stated an elite and privileged group to many of the Anti-Federalist beliefs. create a national government for the purposes of serving its own selfish interests.  Many Anti-Federalists agreed with some, although not necessarily all, of the PROBLEM 5.3E following arguments against the Create a chart that compares the Constitution: arguments between the Federalists and the Anti-Federalists. You are merely 1. It gave too much power to the organizing the discussion in 5.2 and 5.3 national government at the expense into an easily-understood chart. of the powers of the state governments.

PROBLEM 5.3B 5.4 THE RATIFICATION OF THE Read Anti-Federalist, George Clinton’s CONSTITUTION “In Opposition to the Destruction of State’s Rights.” Summarize the Delaware was the first state to argument made there in one paragraph ratify. Within another month, four in your own words. more states joined. Then, in a close, bitter battle, Massachusetts ratified by a vote of 187-168. By June, 1788, nine states had voted to ratify the Constitution. (New Hampshire was the ninth.) But the important states of Virginia and New York had not yet ratified. Any union would be incomplete without those large, key HOT TOPIC IN THE NEWS states. Has the Government exceeded its After much political dealing, the valid authority over its citizens? ratification assemblies in New York (People v. Williams, CA2001) (30-27) and Virginia (89-79) voted in

favor of the Constitution. North Facts: The U.S. Constitution has been Carolina then reconsidered and changed – amended - 27 times by changed its vote (having originally amendment. In addition, the meanings of its decided against ratification) and words have been interpreted by courts, thus finally, Rhode Island became the making the Constitution a “living,” changing, thirteenth and final state to ratify. evolving document. It was only the promise of However, recently various groups have including a Bill of Rights that risen to oppose what they feel are changes swayed key votes for ratification. The from the original intent of the framers. The objective of these so-called “constitutionalists” Federalists argued that there was no is to control (or avoid) big government and necessity for such a statement of return to fundamental constitutional principles rights since the new government of limited government, self-reliance and actually contained limits on federal enhanced personal freedoms. They practice power. However, in order to win over what they call “guerilla lawfare:” a leaderless key delegates the Federalists resistance to unconstitutional and non- promised that among the first actions constitutional government, to institutionalized the new national government would injustice and judicial excess that are often take would be to adopt a Bill of reported in the areas of family law, traffic Rights that would place specific limits tickets, gun control, drug laws, and immigration enforcement. The people of this on the powers of the national movement claim they are fed up, often angry, government and secure certain but always convinced you can – and must – freedoms from the clutches of the fight “city hall.” new government. With that One example of this is the theory of concession enough Anti-Federalist nullification – that a juror can choose to pressure disappeared to pass the ignore the judge’s instructions on the law if Constitution. A nation was born. the juror feels morally opposed to the law. This case involves a charge of statutory rape against an 18-year-old male and his former girlfriend, a 16-year-old female. During PROBLEM 5.4A deliberations, one juror told the judge, “I’m Using Chapter 5 as a source, answer the trying as best I can. I’m willing to follow all of questions on the Federalist/Anti- the rules on the rest of the charges, but on Federalist handout. that particular charge [statutory rape], I just feel it duty-bound to object.” Issue: Should a juror have the right to disobey the judge’s instructions on the law if the juror is morally opposed to the law? Rule: The Court said “the basic rule is that

jurors are required to determine the facts and render a verdict in accordance with those facts and with the court’s instructions on the law”. A juror who is unable or unwilling to do so is “unable to perform his or her duty as a juror and may be discharged.” Do you agree with the court decision? Is there any situation in which you would not “follow the law” as the judge instructs you?