(Caution: These notes are being provided for the sake of reference only; the actual texts, classrooom lectures, discussions, et al., are part of the material covered. The following notes are provided to assist your preparation for the midterm, not as a study guide.)
1/16 Supremacy of Law and “ The Rights of Englishmen”
Introduction
British Influence the Greatest
A system largely concerned with a negative liberty, from, rather than to
Liberty defined as a lack of coercion, and protection from certain institutions
Liberty and Property
Property’s Role in Protection of Liberty
The Lockean notion of property = self, or our basis in society
Property as the most important of the “ Rights of Englishmen”
Sir Wm. Blackstone - Commentaries ( 1760’s ) on the British Constitution
Nature of Law – most read by American lawyers
No liberty without protection of property
Blackstone’s 3 ways state can take property:
1. Give it to state
2. Eminent Domain – for the higher good, at market value
3. Citizen doesn’t pay taxes
Taxation was voluntary in 18th century England.
There was no absolute right to buy or sell.
Blackstone supported the right to vote if you owned property.
Evolution of Liberty.
The monarch originally defined liberty.
This changes with the Magna Carta – Clause 39 – Freemen cannot be detained without the
judgment of their peers
Power taken from King, and shifted to people, who defined liberty
1689 – English Bill of Rights – a guarantee of personal rights
Power shifted to legislature, or Parliament, or House of Commons
This legislative supremacy was adopted by the American Founders
Parliament – free speech, source of taxation, power of purse, & accountable
Lessons Learned
Magna Carta
British Bill of Rights ¾ of American Constitution!!!
British Constitution (unwritten)
Examples:
Congress meets on regular basis
All money bills begin in House of Representatives
Legislature limits power of the Executive
Impeachment provision
Habeas Corpus
All 13 State Constitutions were similar to British documents.
Patrick Henry – suggested our spirit of liberty comes from England, and is an act of recovery,
not of creation, or Americans’ sense of the lost “Rights of Englishmen.”
4 Lessons Learned by American Founders:
1. Non-ideological constitution best
2. Priority of law over revolution
3. Self-preservation of political tradition
4. No abstracts, as constitution should be grounded in concrete ideas
1/21 English Influences
Texts
The Magna Carta (1215)
Theme – limiting absolute power of the monarch to preserve liberty
Liberty is better when diffused.
established the “Rule of Law” - before 1215, one person rule
Barons forced question on King John
Check on King’s power to tax
Separation of church and state
Trial by peers
Immigration and mobility
Petition of Rights (1628)
Individual rights – Power in hands of the citizenry, through Parliament
In our Constitution & Declaration:
No quartering of soldiers in homes
Preserving liberty while maintaining a standing army
English Bill of Rights (1689)
Response to Glorious Revolution
More explicit and direct rights cited by citizens
Four Reasons for the Importance of Primary Documents
1. They provide the intellectual framework for the Constitution.
2. They are part of the Western heritage of tradition and law.
3, The American political tradition is the fulfillment of the pleas and concerns of the
British citizens.
4. These documents are the mentors of the American political tradition.
Major Ideas
John Locke at end of the 17th century – Second Treatise on Government
Property = Liberty We institute government to protect our liberty
James Harrington – Oceana
A novel concerning a fictional commonwealth – political power = property
Coke and Blackstone – Theorists who believed the “Rule of Law” as basis for politics
1/23 Colonial Government. Governors, and the Revolution
Colonial Government
The experience of being British citizens was influential to American political thought.
We aren’t unique!
Is anything really American?
Constitution – a quest for ordered liberty
Inheritances (or lessons learned) from Britain
1.Notion of representation – especially Senate, an aristocratic body vested in the
interests of society
2.Checks and balances – a European and British tradition
Aristotle – polity
Montesquieu – Separation of powers (problem – Prime Minister)
3.Natural Law – government’s purpose to defend
4.Independent Judiciary – arbiter between people and government
5.Federalism – political power must be diffused
Colonial Governors A principal officer of each colony who was appointed by the King
1.Royal – from King
2.Proprietary – proprietor appointed by King
3.Charter – elected (PA,CT)
All 13 Colonial Governors had veto power!
Results in the minds of colonists:
Dislike of executive power
Legislative Supremacy
Sources of Ideas
Natural Law – certain principles of law inherent in nature
Plato’s Republic – absolute justice
Stoics – harmony of man’s institutions and nature
Sovereignty should rest with the citizenry
Pre-Revolution
Britain viewed colonists in commercial terms.
1750’s – cooperation breaks down as control is centralized
Albany Plan – Benjamin Franklin’s scheme for government, which no one adopted
British reform program becomes more dramatic
1/26 Towards the Revolution
Religiousity
Colonists had the idea that God had set America aside.
Roger Williams – Baptist – notion of freedom of conscience
George Washington – Anglican (deacon)
Thanksgiving Proclamation/ Letters to 3 churches
Endorsement of religious freedom & diversity
“Letter to Hebrew Congregation in Newport” very influential
Revolution – Why?
Social – Cultural split & class conflict – elite sided with Great Britain
Political – crisis developed over British reform program after 7 Year War
Grenville’s Reforms – all 3 were strictly enforced!
Proclamation of 1763 – closes frontier
Sugar Act – “power to tax” an awesome power
Stamp Act
James Otis spoke against these acts in defense of the colonists.
Stamp Act Congress – Colonists (Dickinson) adopted resolutions
against these measures/ repealed Stamp Act
Townsend Acts/ Intolerable Acts – even more repression
1/28 Theory of Revolution
Philosophy of Revolution in the Air
John Locke – right of rebellion to correct the abuse of rights
Puritans
John Adams – “Independence a hobgoblin…”
Braintree Instructions – opposition to Stamp Act
English institutions aren’t working
Property is protected
Pamphleteers
Ben Franklin – as early as 1754
James Otis – Bostonian lawyer – “MA. Committee of Correspondence”
Rights of British Colonies Asserted and Approved
attacks Stamp and Townsend Acts
cites Magna Carta/ Legislation can’t be arbitrary
King no longer sovereign
John Dickinson – PA – signed Declaration & eventually, Constitution
Unlike Otis, argues not revolution, but legal remedies,
or “Right of Petition.”
Alexander Hamilton – A Full Vindication – very dramatic
Parliament’s actions against “Law of Nature”
*Pamphleteers left the natural rights appeal as the last resort*
*British side – many wrote sermons (ex. – John Wesley)
4 Basic Reasons for Revolution
1.Theory of Representation
2.Authority of Parliament
3.King is too Powerful
4.Natural Law
Tories/ Loyalists took Great Britain’s side
Johnathon Boucher – Anglican clergyman who preached against pamphlets
Samuel Seaberry – A View of the Controversy - King & Parliament legitimate
Other Texts
Resolutions of the Virginia House of Burgesses (Virginia Legislature)
Colonists entitled to freedom
Declarations of Stamp Act Congress
“Rights of Englishmen”
1/30 Declaration
Great statement of American political principle
First draft by Jefferson – committee made changes to actual document
Doesn’t set up a structure for government
A defense of Natural Law, higher than the English legal system
Purpose in Writing
Not revolution, but to discover what was lost
To state what the colonists were thinking
Structure
2 paragraphs of eloquent English prose
List of grievances against the King
Ultimate complaint – tyranny of the King, a metaphor for all that was
bad, an easier target than Parliament
standing army
taxation
mock trials approx. 65 grievances
no trade
took away charters
repressed legislature
stopped judicial process
Problems
Disjointedness
Santayana “ A salad of illusions”
Or, an important political statement???
2/2 Primary Texts
Discourse at the Dedication of the Tree of Liberty
A sermon by Silas Downer, aiming for reform, not revolution
Issue of control & power – liberty comes from God
Letters from a Farmer in PA - John Dickinson used a pseudonym
Talks of maternal power & responsibility
Uses the term “humane”
Declaration and Resolves of the First Continental Congress
2 years before Declaration – speaks of life, liberty, & property
A list of “antecedent rights” – those that come before liberty
Virginia Bill of Rights - foreshadowed the Declaration of Independence
A powerful statement of political principle
Power rests with the citizenry – consent of the governed
Lists:
Free elections
Trial by jury of 12
Freedom of religion
Freedom of press
No excessive bail
On Civil Liberty, Obedience, and Non-Resistance – Jonathan Boucher (Tory)
Liberty is spiritual/ Obedience to state
To overthrow state is to overthrow God, a heresy
Ordinances of state are ordinances of God
Common Sense - Thomas Paine
Which is first – society or government???
Society has superior claim, & can reform government
Power too concentrated – checks & balances at all levels needed
2/4
Thoughts on Government - John Adams
Separation of Powers – to prevent tyranny
Division of power, & limitations on power
Tone – “Lamp of Experience”
American republic does not stand on its own, but previous ideas
An empire of laws, not of men, based on virtue, not fear
Virtue = happiness, which comes from self-restraint!
Declaration of Independence (more notes)
Language – much the same as in previous texts – a composite
Maier calls a “workaday document,” of the 2nd Continental Congress
It has taken on more significance over the years
What is this significance?
Unambiguous, it dissolves political bands
It allows for a diffusion of power
Notion of politics
“Consent of the governed”
Government dependent of the deliberation of individuals
2/6 Articles of Confederation
Background
Richard Henry Lee introduced resolution in June of ‘76
J. Dickinson chaired committee
July ’77 - presented to states for ratification (each had 1 vote)
6 Major Powers Given to Continental Congress by the Articles
1.War & Peace
2.Power to send/receive ambassadors
3.Power to make treaties/alliances
4.Power to coin money
5.Right to regulate Indian affairs
6.Establish a post office
Powers NOT Given
1.Power to regulate commerce
2.Power to levy taxes
*The Confederation could request money & troops from the states*
Executive incredibly weak, actually a committee
The president of the Continental Congress was presiding officer (1 yr.)
Judiciary given only 4 jurisdictions, or rights to hear a case
1.Interstate disputes
2.Private land disputes over borders
3,Cases related to piracy
4.Courts of capture (enemy ships)
*From 1781-89 there were 16 interstate controversies*
What Makes it into the Constitution
1.Extradition of fugitives
2.Full faith & credit
3.Citizens of states have equal liberties
4.Congressional immunity (lawsuits)
Weaknesses of the Articles
1.National government had no power to tax
2.National government couldn’t regulate commerce
3.National government dependent on states, who were essentially agents
4.National government had little judicial power
Positives of the Articles
1.We won the War!!!!!!!!!!!
2.Recognized a national diffusion of power
3.Utilized “consent of the governed”
4 Failures
1.Failure to protect western interests
2.Inability to negotiate trade
3.Contienetal Congress couldn’t force states to give Tory property back
4.Significant economic battles between the states
2/9 Constitutional Convention
Background
May 7, 1787 – meeting called in Philadelphia to amend the Articles of Confederation
States invited to send delegates, (all do except RI) Patrick Henry refuses to attend
Leading the reform efforts were those involved in the war (Hamilton, Washington)
Virginia Plan Large state plan - Federal Supremacy/ Strong national government
The first systematic plan to revise the Articles
Author – James Madison Introduced by Edmund Randolph
Bicameral legislature based on population
Senate elected by House
State veto provision
Privy council – Executive with a judicial council
New Jersey Plan Small state plan - for less change/ revision of Articles
Author – William Patterson
Unicameral legislature based on quota system
Congress given power to tax
Legislature chooses executive and judicial / multiple executives
Hamilton Plan Life executive – made VA Plan look moderate!
2/11 Constitutional Convention
Constitution a 2 Part Process
Constitutional Convention – May, 1787 – Sept., 1787
Ratification Process in the states – 1787 -1789
Misc. notes
No more than 11 states were present at the convention at one time.
74 delegates were elected, and 55 actually attended.
12 men did the real work.
Federalists want reform/ the majority, and the most organized (Publius – Hamilton, Madison, Jay – 85)
James Wilson – PA – most important legal mind/ author/ teacher/ Christian
Benjamin Franklin – PA – 82, and oldest delegate/ advocate of compromise
Oliver Ellsworth – CT – a moderate, who believed in blending state & national govternments.
George Washington – VA – not a philosopher, but favored strong national government/ General
Alexander Hamilton – NY – businessman who favored vast commercial power/ GW’s aide de camp
James Madison – VA – Secretary of CC and one of Publius
Anti-Federalists against reform, believed constitution abrogated American liberty (Bill of Rights)
Luther Martin – MD – Catholic, leaves before convention is over
George Mason – VA – very rich/ later a governor
Patrick Henry – VA – refused to attend
Robert Gates & Lansing – NY – outvoted Hamilton (1 vote per state)
Roger Sherman – CT – author of the “Great Compromise”
Big Issue Representation Electoral College & Supreme Court came much later!
Text of the Constitution
Art. I Legislative Supremacy
House – large state/ 2 yr. term - 25 years old - Money bills/ impeachment
Senate – small state/ 6 yr. term - 30 years old - Treaties/ removal/ “advice & consent”
Art. II Executive - 35 - no term limits
Art. III Judiciary – Courts not defined – only 350 words!
Art. IV Full Faith & Credit – states
Art. V Amendment Process
Art. VI Constitution Supreme Law of the Land
VII Ratification – 9 out of 12
2/13 The Federalist
Most coherent defense of the Constitution
85 essays published as individual newspaper articles
Publius – pseudonym, Jay, Madison, Hamilton
Newspapers read by a literate few in the 18th century
Weaknesses:
Against notion of the Bill of Rights
3 different viewpoints – a split personality
Publius on liberty
Publius on the judiciary ( #78 the least dangerous branch)
Essays, Authors, Major Themes
#1 Hamilton Reflection & Choice v. Accident & Force
America as an empire of the future – economic & political
Constitution as a court to the people
#2 Jay America as 1 country
Different notions of the Union
National defense dictates strong national govt.
#3 Jay Union as best defense
Best men to serve (Plato’s theory of statesmanship)
“Strawman” – 13 states v. national government inconsistent
with the Articles (chaos v. order)
2/16
#4 Jay A strong union discourages war “But whatever may be our situation, whether firmly
united under one government, or split into a number of confederacies, certain it is,
foreign nations will know and view it exactly as it is, and they will act towards us
accordingly.”
#5 Jay Division of Great Britain caused conflict
Intrinsic weaknesses, & warning to avoid
States would be jealous of each other
#6 Hamilton Problem of factions/ separate states with their own interests
Man as ambitious, vindictive, & rapacious
Passions affect conduct more than justice
Advantage of a commercial republic (overacts to NC & NH)
#7 Hamilton “Dismemberment of the confederacy not an issue”
Without central govt. we would become entangled in European politics/war
Territorial disputes/ Importance of property
#8 Hamilton “Fish Theory” – Bigger states overtake smaller states
“Safety from external dangers is the most powerful director of national conduct.”
To keep status of a state one must unite!
Disunion means war
#9 Hamilton A great essay in modern political thought
“Science of Politics has received great improvements”
Perfecting representative government – “enlargement of the orbit.”
Confederation v. consolidation
AFs misunderstand Montesquieu, a great source for the Founders – “Celebrated”
2/18
#10 Madison Definition of a faction – A number of citizens (majority or minority) united by
a common impulse adverse to the rights of other citizens (summarized)
Control factions by: Removing causes Controlling effects
One on side – reason/opinion the other – self-love/passion
Cure for factions – “Extended Republic Theory”
Create new states
Possibility of better leadership
#11 Hamilton National power = Economic success
Strong navy needed to provide safety ( pirates, etc.)
#12 Hamilton Commerce encourages the payment of taxes
One unified government can tax imports more effectively
#13 Hamilton Union better than 3 or 4 confederacies
#14 Madison Pure political theory (like 10) “A republic may be extended over a large regime”
Limits of democracy/ republic
Federal government limited to essential power
#15 Hamilton Problems of Articles – “last stage of national humiliation”
“Perilous situation”
#16 Hamilton Confederacies “parent of anarchy”
Large states can’t be tames, & small states have no voice
#17 Hamilton National government will never exceed its power!
2/20
#18 Madison Uniformity of the law didn’t help in ancient Greece – lack of union
Larger states will tyrannize the small
Theme of national security, on which Publius agreed
#23 Hamilton “Energy” in government – various forms of power necessary as means to
justify an end
Power needed to manage foreign relations, commerce, & defense
#25 Hamilton National army more efficient than state militias
It can do what state militias cannot
“Standing Army” responds to national problems
#32 Hamilton Necessary and Proper Clause defense – national government given the power to
make laws that are necessary and proper (Article I, Section 8)
2/23
#52 Madison House of Reps – government should have a “common interest with the people”
Basis of unification
Qualifications – 2yrs. of age, resident 7 yrs., 2 yr. terms
More frequent elections & more representative of people – more powerful
Comparison to House of Commons
#53 Madison Defense of 2 yr. terms – experience needed/ travel time required
Knowledge of foreign relations & commerce
Antifederalist argument – “That where annual elections end, tyranny begins”
Continuity in government
#56 Madison AF argument refutes House as too small
Publius says knowledge (commerce, taxation, militia) possessed by intelligent few
Too many points of view a problem
1 per 30,000 necessary
#62 Madison Senate a check on House/ small states check on large states
Qualifications – 30 yrs. of age, resident 9 yrs. 6 yr. terms
` As a body, not corruptible – filtered by indirect election by state legislators
#63 Madison Defense of 6 yr. Senate terms – permanency
An acquired knowledge of national affairs
2/25
#65 Hamilton Impeachment
A check on Executive
Assertion of the “consent of the governed”
President & Supreme Court Judges
Impeachment – a list of offenses - begins in the House Judiciary
Removal – Trial is in the Senate, with the Chief Justice presiding
Senate is best, as it is less biased than the House & more removed
Supreme Court not adequate, as they are not elected
#69 Hamilton Veto power
A check on the Legislative branch
Protection against factions in House & Senate
Keeps the Executive from becoming a puppet of the legislature
Threat of a call to session very important
#70 Hamilton Energy in Government – It is unity, duration, & power!
No plural executives/ Refutes privy council
Affects executive’s energy
Dissent prevents decision-making ability
#71 Hamilton Duration in office – personal fitness & stability
Theory of statesmanship
Human nature
Separation of powers
#73 Hamilton Adequate provision for support of the Constitution
The threat of a veto is the more dangerous than the actual veto
#78 Hamilton Judiciary Independence
“least dangerous branch” “weakest”
Courts are intermediaries between citizenry and government
Judicial review – court will come to interpret the Constitution in future years
#80 Hamilton Trial by Jury
#84 Hamilton Bill of Rights – saves his somewhat half-hearted argument for the end
Publius believes that the Constitution itself is already a Bill of Rights!