LO III CONST

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Required Lecture LO III

Suggested Viewing

Suggested Readings:
ESSAY 1: The Founding Fathers: A Reform Caucus in Action
ESSAY 2: A Kind of a Revolution
ESSAY 3: Of Monarchs and Majorities: Thomas Paine's Problematic and Prescient Critique of US Constitution

Learning Objective III:

Discuss the other major weakness of the Articles of Confederation and show how our present-day Constitution overcame them. Be sure to address how the Constitution addressed the economy, political instability, conflict's between small and large states. Also be sure to include in your discussion the concept of "federalism" and how it address the weaknesses of the Articles.

The major defects in the Articles were:

1. The government under the Articles did not have an executive branch. The Congress under the Articles could make laws, but it had no way to enforce them; it had to depend upon the states to serve as the executive branch.

2. Second, there was no judiciary branch to settle disputes between the states, between the states and the central government, or to protect the rights of individual citizens.

3. Next, the government under the Articles did not have the ability to regulate the economy in order to bring financial stability to the county.During this time period there were at least two important areas where Congress needed control:

1. First Congress needed the ability to regulate the money supply:

(l ) by being able to control the amount and the value of money printed , and

(2) it needed to be able to raise money by having control over taxation.

Under the Articles, the states could print their own money and determine the value of other money used within its borders. At the same time the central government could levy no taxes on individuals or upon the states.

Finally, the Congress needed the ability to regulate interstate trade and trade between the states and foreign countries. The fourth weakness was a lack of flexibility in the Articles, in that it could not adjust to the needs of the people and the states.

The Articles were impossible to amend because it took unanimous consent of the states to make any modification. The last weakness was that the Articles did not provide for a bill of rights to guarantee the rights of the people . It appears that, at the time the

Articles were drafted, it was not felt necessary because the state of the inability of the government under the Articles of Confederation to constitutions all provided a bill of rights. Because regulate and stabilize society, economically, socially and politically , chaos broke out within the states.

This made the states realize the need for a stronger government and, therefore, our present-day Constitution was created.

In order to demonstrate this result, it is necessary to discuss the post-war economy and show how the government under the Articles accomplished little in the way of stabilizing society . Although the war for independence freed American trade from the restrictions of the British Imperial system; this freedom did not prove too profitable in the years immediately after the war.

In England after the war, a controversy broke out over the position of the former colonies in the British Imperial system. Unfortunately for the American states, England would find it difficult to be friendly and, in 1784, Parliament voted to try building up exports to America while holding imports to a minimum . This attitude hurt American interests severely. Southern states, the termination of royal bounties hit North Carolina naval stores and South Carolina indigo planters hard, and a new English duty on rice reduced the export of that pr dv by 50 percent.

The British Orders in Council of 1783 struck hard at the Northern states, when it barred American cured meat, fish, and dairy products from the British West Indies and permitted other American products to enter the islands only in British ships.

At the same time English merchants, eager to regain markets closed to them during the war for independence, poured low-priced manufactured goods of all kinds into the American market. The unfavorable trade balance also resulted in a constant shortage of hard money into the new states. Gold and silver tended to flow to Europe to pay ' loan and to purchase manufactured .goods an 1 English goods aggravated the American.

This situation developed because the Congress, under the Articles, was unable to control foreign trade by limiting imports or forcing the British to open the West Indies to unrestricted American trade . When individual states erected tariff barriers, English merchants easily got around them by bringing their goods in through states that did not. The central government's lack of power to control commerce thus proved to be a major weakness in providing stability within society .

An earlier movement in 1781 to solve this problem by giving the new central government the power to tax imports had failed. At that time the Congress under the Articles sought authority to levy a five percent tariff duty. The measure required the unanimous consent of all the states and therefore failed when only eleven states agreed. The lack of flexibility that required a unanimous consent before any major change could be made to the Articles was recognized as a problem which would need to be addressed. Other attempts by the Congress also failed. In January of 1785, the Congress appointed a committee headed by James Madison to try to persuade the individual states to grant it the power to regulate foreign commerce, but it failed.

In January of 1786, the Virginia Assembly issued an invitation to the other twelve states to attend a commercial conference at Annapolis for September of that year. When only five states attended the Annapolis Conference, the group decided they did not have the representation they needed to consider the reforms and so they adjourned. Before the adjournment, Alexander Hamilton drafted a request to the states that called for another meeting in Philadelphia in May, 1787, to discuss needed political, as well as commercial reforms.

The Early Republic's Economy Collapses

A depression developed in the new states after the war in 1784, wholesale prices which were inflate during the war dropped rapidly and farm produce was a glut on the market, owing to the stoppage of the West Indies trade. The inability of the government under the Articles to pay its debts undermined confidence and caused grave hardships for veterans and others dependent on the new government.

Thus. the central government's inability to raise money to pay its debts and thereby create a militia which would allow it to direct the affairs of the country was a serious weakness that needed to be overcome. Also, the depression made the states stingier than ever about meeting the financial request of the central government.

When the central government needed money from the states it had 'to ask for it in a request called a "requisition." If a state refused to pay the requisition for some reason, like New Jersey did in February, 1786, the government was powerless to do anything about it. Thus the central government's inability to enforce its laws or decisions is considered another major weakness.

At the same time, most of the states at the close of the war stopped issuing paper money and tried to pay off war debts and collect long over-due taxes. Wartime creditors also began to press the farmers and small merchants for back interest and the state legislatures began to raise taxes and to demand that they be paid in specie. Farmers and small merchants countered by demanding the states print money to serve as legal tender for debts and to enact "stay laws" which would postpone debts. In most states, the farmers did win certain concessions.

Seven states issued paper money, but the problem was that one state would not accept another's currency at full value or wouldn't accept it at all. Hence. another major weakness was the central government's inability to stabilize the economy by controlling the money supply and providing a uniform value in each state. Although it was too late, in August , 1786, the Congress did try to solve the problem when it adopted a coinage system based on the Spanish milled dollar. Originally proposed by Thomas Jefferson in July, 1785, the coinage system mandated a gold piece valued at $1O; a silver piece worth $1; a tenth of a dollar also in silver, and a penny in copper.

This economic instability led to political chaos in states like New Hampshire where the state militia had to be called out in September , 1786, to disperse a mob that had surrounded the legislative meeting house in an effort to coerce the members to issue paper money.

View the Following to Learn More About Shays Rebellion: 1787

At the same time, in Massachusetts, where desperate farmers lacked the political power to obtain relief, civil war broke out. Taxes averaged about one-third of the farmers' income as a result of the commercial interest shifting the weight of taxation to land after obtaining control of the state government in Boston. As mentioned, farm produce had become a glut on the market owing to the stoppage of West Indies trade.

This resulted in clogged courts with suits for debt. The cost of justice was exorbitant, and some farmers faced debtors' prison, while many others were sold into servitude for a term to pay off their debt. During the summer of 1786, popular conventions and town meetings throughout Massachusetts demanded reform in the state administration. In July, to evade the farmers' protests, the legislature adjourned until the end of January of 1787. This cowardly act precipitated the violent uprisings that are known as Shays' Rebellion. By the end of August 1786, mobs of farmers under the leadership of a former army captain, Daniel Shays, began forcibly to prevent the county courts from sitting.

The object of the leaders appears to have been to prevent further judgments for debt, pending the next state election. They met with stout resistance from the state government. The mobs were ordered to disperse, the leaders declared outlaws, and a price placed upon their heads. Shays and his comrades then resolved to become rebels and threatened to besiege the state government. But the 2,000 rebels led by Shays and Luke Day lacked firearms, and their attempt to capture the federal arsenal at Springfield, in February, 1787, was repulsed.

Shays' Rebellion had a great influence on public opinion. Consequently, the state government acted with wisdom and mercy and eventually pardoned all of the rebels, even Shays.

Shays' Rebellion shocked conservatives throughout the nation. George Washington was said to have been deeply troubled by the news of the uprising and feared that such a disorder was the natural consequence of excessive democracy, and he was not alone in his fears. Nevertheless. the rebellion was the final argument to sway many Americans in favor of a stronger central government. Locally, the uprising had the effect of inducing the legislature not to impose a direct tax in 1787 and to enact laws lowering court fees and exempting clothing, household goods, and tools of one's trade from debt process. These were all of the things the rebels had requested earlier in the summer of 1786.

Our present-day Constitution overcame the major weakness of the Articles of Confederation, demonstrated in the post-war economy, with the implementation of the principle of Federalism and the establishment of enumerated powers which were reserved for the Federal government.

To overcome other weakness in the post-war economy the present-day Constitution also established three branches of government instead of the one that existed under the Articles.

These three branches of government provided a system of checks and balances and separation of powers which would protect the government and the people from the tyranny of a military dictator or a small group of power-hungry men . This doctrine of checks and balances and separation of powers did not weaken the government by putting limits on it, but instead strengthened it by keeping it form situations where revolutionary overthrow might be possible .

Like the Articles of Confederation , the first branch was a legislative department which was provided for in Article I of the Constitution and consisted of two houses, the Senate and the House of Representatives . Again, like the Congress under the Articles the legislative branch could only make laws. It was not granted the ability to enforce them. Article II of the Constitution provided for the executive department or the President. The President could not make laws, but could only enforce the laws that Congress or the legislative branch passed. The addition of this branch to the government's structure overcame one of the major weaknesses of the Articles as it gave the new Constitution the ability to enforce its laws.

The third and final branch was the judicial department which was established under Article III of the Constitution and served as the referee between the other two branches.

It also provided for a check on their power and provided balance within the federal system, since the judiciary settled all disputes over the meaning of the Constitution between the states and Federal government as well as protected the rights of individuals within the states. Under the Constitution, all courts in America, state as well as federal, have the power in appropriate cases to declare legislative enactments unconstitutional.

This principle of checks and balances was applied not only to the three branches of government, but also to the classes of society. The Founding Fathers were in essential agreement on the question of human nature and on the exercise of political power. It was acknowledged "wealth tends to corrupt the mind," and that rich men as well as poor would use power to their own advantage if given the opportunity. Even though the need for a stronger centralized government was recognized, it was feared that power might be misused if it were concentrated in the hands of a few men.

The Founding Fathers assumed from the very beginning that, although power was necessary, it was also dangerous. They tried to write a constitution that would insure effective power for the government but that would place reliable checks and safeguards on the use of that power. ·

The third and final branch was the judicial department which was established under Article III of the Constitution and served as the referee between the other two branches.

Human nature, they believed, was universally fallible, and only built-in institutional safeguards could be counted on. Therefore, it was felt necessary to check the greed and pride of the rich as well as the development of popular democracy. For the Founding Fathers, democracy and liberty did not go hand in hand.

The Founding Fathers were as reluctant to entrust power to special interests as they were to entrust it to individual or social classes . They knew that a landed interest, a moneyed interest, a commercial interest, if it could seize full control of government , would tyrannize the rest of society. Thus, James Madison argued, a federal union of the states would lessen the possibility of tyranny because the more extensive the society, the less the danger that some single group would be able to dominate it, and the less probable it would be "that a majority of the whole will have a common motive to invade the rights of other citizens ."

According to Dr. Parenti, what were the reasons for constructing the US Constitution and HOW and WHY was the US Constitution inherently undemocratic?

he Constitution that finally emerged provided for a system of checks and balances in which all classes were to be represented; it embodied the separation of powers, with mutual checks between the branches of the Legislature and between the Executive, and the Judiciary. To solve the problem of flexibility , our present-day Constitution provides several solutions which makes the document the longest living constitution in the history of the modem world.

These solutions are:

1. Amendment Process:

Article five of the Constitution provides for the amendment of the document. An amendment may be proposed in one of two ways :

(a.) two-thirds of the states' legislatures can petition Congress to summon a national constitutional convention for that purpose; or

(b.) (the only method by which the Constitution has been amended) Congress can submit amendments to the states. If three-fourths of the states ratify an amendment, it becomes part of the Constitution.

These solutions are:

1. Amendment Process:

Article five of the Constitution provides for the amendment of the document. An amendment may be proposed in one of two ways :

(a.) two-thirds of the states' legislatures can petition Congress to summon a national constitutional convention for that purpose; or

3. Brief and Vague:

The Constitution is an extremely brief document to have been successfully applied to the government of this country for over 200 years while it was going through such profound changes as it has. It would have been neither so brief nor so successful had its framers tried to spell out the meaning of all its difficult phrases, instead of leaving them to be reinterpreted by future generations in response to future needs. Further flexibility emerged from the delegates' decision to say nothing at all in the Constitution about several important problems, even though they were discussed in the Convention--the assumption of state debts, for example, and the establishment of a national bank. A large majority of the framers were also opposed to universal male suffrage, but their attitude toward it was not betrayed in the Constitution. The silence of the Constitution on these important political issues, which would be the subjects of acute party conflict in the years to come, allowed the different political factions to support the document. The final weakness of the Articles of Confederation, its inability to protect individual rights. was overcome by our present-day Constitution with the first ten amendments to the document which became the Bill of Rights for the American people.

After the thirty-nine delegates signed the document on September 17, 1787, the document was presented to the states for ratification. In each state, special conventions were chosen by the people for the express purpose of accepting or rejecting the Constitution. This procedure was more democratic than any by which any previous joint decision of the states had been made.

The Declaration of Independence, for instance, had not even been submitted to the states for ratification and the Articles had only been ratified by the state legislatures. It seemed appropriate to the signers that the document be referred to the people themselves for approval because the delegates had completely exceeded the instructions given to them by their state legislatures by drawing up a whole new Constitution instead of just amending the Articles of Confederation.

The state conventions again and again raised one persistent doubt about the Constitution. Why did it not contain a guarantee of the rights of the people, as almost all the state constitutions did? It appears this topic was not seriously discussed because these rights were in the state constitutions and there had been no bill of rights in the Articles of Confederation.

However, the Articles had left the basic powers of government in the hands of the states, whereas the Constitution transferred many of them to the federal government. For this reason many people, called Anti-Federalists, opposed the new Constitution, and demanded explicit guarantees against a powerful government. It was due to these Anti-Federalists, who demonstrated strong opposition to the Constitution, that the Bill of Rights became a reality. And it was, and still is, the ability of the government under the Constitution to respond to public opinion that has become one of the greatest sources of flexibility and strength of the Constitution and has made this document what it is today.

Eleven states (only nine were needed) had ratified the Constitution by early 1788 so the first elections were held during that year.

In spite of their defects, the Articles of Confederation were a significant stepping-stone toward the present Constitution. Any assessment of the Articles must take into account the fact that the Articles were a product of history as they were a reflection ·of the personal and individual growth of the states.

As discussed, only when there was trouble--with England's taxation policy, war with France, or with the Native Americans--did they see the value of working together. As the first written constitution of the country, the Articles kept alive the flickering ideal of national unity until such time as the states were ripe for the establishment of a stronger government under our present Constitution.

Almost as important, was the ability of the government under the Articles to take control of the vast territory between the Appalachians, to the Mississippi and down to the Ohio River. The government under the Articles provided for an orderly settlement and development of the area into new states within the new United States. The development of the area was provided for under two major laws:

The first of these was the Land Ordinance of 1785, which provided for how the land would be sold to help pay off the national debt, provided for the first public aid to education, and helped eliminate endless confusion and lawsuits.

The territory was to be surveyed before sale and settlement, and divided into townships six miles square, each of which in turn was to be split into 36 sections of one square mile each. Section 16 of each section was set aside to be sold for the benefit of public education. Even more important was the Northwest Ordinance of 1787, which provided for the manner in which the northwest territory would be converted into future states.

It also stated that slavery would not be allowed to exist in such states. The law stated that the territory would be divided into no fewer than three and no more than five states. Thus the Ordinance provided for how future territories would become states on an equal footing with the existing states, and solved the problem of future expansion for our young country in an orderly manner.

As discussed under Shays' Rebellion, the period after the American war for independence had driven many Americans to a renewed expression of violence . This violence shocked the conservatives throughout the nation and made them more aware than before of the necessity of creating a stronger government. By March, 1787, with Shays' Rebellion suppressed, the movement for a new constitution was well under way .

The convention finally met in Philadelphia's Independence Hall on May 25, 1787, for the sole purpose of amending the Articles. The 55 delegates from the 13 states soon found it to be impossible, so they decided to draw up a new constitution.

The framers of the Constitution were going ·to run into four major problems which they would have to compromise on to satisfy the interests of all who were involved . Thus, the key word at the convention was COMPROMISE. It was felt that a strong central government was necessary, but that a balance was also necessary to protect the interests of all those involved. The five major problems were as follows:

The four major problems were as follows:

1. Big States V. Small States

The first was the interests of the big states versus the small states. This issue saw the creation of two plans, the Virginia Plan andNew Jersey Plan, to deal with this problem . The Virginia Plan would have made voting in the national legislature dependent on population, thus giving states like Virginia and Massachusetts more power . The New Jersey Plan was an attempt to protect the interests of the small states by making each state equal by giving them each one vote in the new government just as they had had under the Articles.

Out of the debate over the Virginia and New Jersey plans came a series of compromises, sometimes known as the Great Compromise. The Compromise provided for a Congress consisting of two houses The upper house, which they named the Senate, would have equal representation , with each state sending two senators. In the lower house, the House of Representatives , representation would be apportioned according to population .

2. North v. South and the Issue of Slavery

A second problem for the convention was to balance the interests of the North versus the interests of the South. What was to be the position of blacks in the Southern states? Were they to be counted for representation in the House of Representatives? The South obviously said yes, while the North said no, arguing that it might as logically have additional representation by counting its horses. As a compromise between total representation and none at all, it was decided that a slave might count as three-fifths of a person; this became what was called the"three-fifths compromise."

Most of the states wanted to shut off the African slave trade. But South Carolina and Georgia, requiring slave labor in their rice paddies, raised vehement protests. By way of a compromise the convention stipulated that the slave trade might continue until the end of 1807, at which time Congress could terminate it. The commerce compromise involved the economic interests of the North versus the South over the regulation of trade. The problem developed when the Northern merchants wanted the Federal government to regulate commerce with foreign nations and among the states to provide economic stability. The Southern states opposed this because they feared the Federal government would pass "export duties" against the crops they grew and exported to European countries and Northern states, thus making it tougher for them to compete in the world market.

3. States Rights (state sovereignty) v. National (central) Government

Under the compromise the Federal government was given the power to regulate commerce with foreign nations and among the several states, including the power to levy tariffs on imports BUT not on exports. A third problem was trying to protect the sovereignty of the states versus that of a strong national government. The answer to this problem was provided for with the principle of FEDERALISM, as discussed earlier. It was also addressed in the tenth amendment to the Constitution in the Bill of Rights. The tenth amendment reads: "The powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people."

4. Democratic Access to the Federal Government

The last problem was the desirability to protect the holders of large property without antagonizing holders of small property--the interests of a minority over the majority. Because of the mob actions in New Hampshire and Massachusetts during Shays' Rebellion, there was a strong desire by the delegates to protect themselves and their interests against the excesses of the mob. Consequently, there was only one group of officials in the new government who would be elected by the people directly. This was the House of Representatives. However, even the number and type of people who voted for the representatives in the House of Representatives could be controlled by the property qualifications that were required in each state to vote. Although no one denied that if the people were to be protected from abuse they must have some voice in government, it was decided one branch of the legislature must be made available for the expression of that voice.

Hence it was understood that the national legislature must have one branch that represented a broad popular suffrage, and that this branch would serve as a check upon--and in turn would be checked by-- a second branch in which the wealthier and more aristocratic elements were represented. The rest of the government's officials were to be chosen INDIRECTLY. Senators were to be chosen by state legislatures and the president would be selected by the electoral college. Justices of the Supreme Court and other federal judges would be appointed by the president (who had been chosen by the electors of the electoral college). Then judges would be confirmed by the Senate (chosen by the state legislatures).

Thus, the Constitution does not display a concern for individual liberties nor does it try to create a popular democracy. In fact, the delegates were anxious to check popular democracy, and said again and again on the floor of the Convention that the country had suffered from too much democracy. Consequently, they were virtually unanimous in their belief that universal male suffrage or any form of democratic government was something to be feared and fought as it would lead to anarchy and mob rule.

Finally, the Constitution is based on four fundamental principles of government.

1. The first is the principle of FEDERALISM, or the division of powers between a national government and the state governments that gives the balance of power in favor of the Federal Government.

2. The second fundamental principle is the separation of powers and the use of checks and balances .

3. The next is the principle of flexibility or the ability of the Constitution to change with the times.

4. Last, but not least, was the principle established in the Bill of Rights of protecting the liberties of individuals . None of the members of the Constitutional convention were completely happy about these results. They were too near their work, and too weary. Whatever their personal desires, they finally had to compromise and adopt what was acceptable to the entire body, and what presumably would be acceptable to the entire country.

The final question, does a republican form of government rest on the virtue of the people or on the formal political institutions that control the people? In other words, is it the character of the people who are in office who will determine if a representative form of government will continue in this country or is it the nature of the political institutions (with the checks and balances and separation of powers) themselves that protect us from our own human nature? The Founding Fathers placed their faith in the institutions they created; where do you place your faith?

U.S. Constitution