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there is a great deal of talk today about the original intent of the writers of the constitution now no matter where one stands on that issue it is important to realize that the writers of the constitution did not foresee or plan to create the political system that we have today that is a democratic republic based upon two national and permanent political parties indeed democracy and political parties with dirty words to them nor did the writers anticipate the economic system we have today
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or our social values in many if not most ways the world they lived in was very different from the one we live in they realized that their world was likely to change that's one of the reasons they put into the constitution the amendment process which in turn is one of the major reasons this document has survived as our frame of government for so long and despite all the changes in all aspects of american life now to understand the world of the founders we must first understand who they were
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the problems they faced and why they created this new frame of government we also need to understand the historical controversies that have swirled around them and exactly what is in the document that they created the public lack of knowledge of those contents is frightening a survey conducted during the 1987 bicentennial showed 46 percent not knowing the original purpose of the constitution 26 thought it was to declare in the independence from england 59 did not know what the bill of rights was
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only 41 correctly identified it as the first 10 amendments 27 thought it was the preamble to the constitution and a frightening 49 percent erroneously thought the president could suspend the constitution
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let's begin with the world of 1787 and the ensuing historical controversies the constitution was not the original frame of government of the newly independent united states the states originally were governed by the second continental congress and then from 1781 to 1789 by the articles of confederation now late 19th century historians saw these articles as a disastrous failure and indeed called this time period the critical period where an infant and endangered united states
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was saved by the god-like founding fathers that interpretation was stood on its head in the early 20th century by historians such as charles beard who argued that it was not a critical period but that its democratic thrust alienated the moderates of the previous decade the revolutionary decade who had become reluctant revolutionaries motivated by economic and class interests they responded with the constitution as an anti-democratic counter-revolutionary document in an
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effort to protect those interests now that interpretation itself then came under attack in the mid and late 20th century this as we will see in later lectures is part of the ongoing process of historical interpretation and reinterpretation for now let me just note that many historians today view the constitution as a continuation of the revolution not the antithesis of the revolution also the issue is far from settled and it is unlikely ever to be settled for historical interpretations again as
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we will explore in later lectures are constantly being affected and revised by present day concerns my interpretation that follows will thus reflect contemporary scholarship and contemporary issues and values now the process of creating governments began in the 1770s as the colonial assemblies transformed themselves into state legislatures and governments this process would involve a series of major departures from british practice reflecting colonial experiences
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for example the colonists rejected the british concept of balanced government in favor of overwhelming legislative power the colonial governors and judges had been royal appointees and had been perceived as tyrannical in the articles of confederation period their powers were extremely limited within each state you also had a move to written constitutions within each state instead of unwritten constitutions this was due to the perceived failure of the unwritten british constitution to
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protect liberty you also had an old tradition in colonial history of written charters in the founding of many colonies state assemblies became more representative due to the logic of the revolution as i explained in the last lecture with the franchise extended and frequent elections the central government at first was the second continental congress which was obviously makeshift and it was replaced by the articles of confederation which were presented to the states in 1777
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but not ratified by all the states until 1781. why the states retained their distrust of any centralized power that's what they were fighting against and they also retained the distrust of each other there had been no history of cooperation before the revolution and the cooperation that existed during the revolutionary period had been quite limited and broke down once the revolution ended smaller states fear larger ones especially those with western land claims
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for fear that they the small states would lose their population to larger states that could avoid taxing by simply using land sales to run the government maryland for example refused to ratify the articles of confederation unless state western land claims were given to the national government virginia and other states agreed in order to get a central government and because they believed that a republican form of government could not work in large areas this is something i'll get to later
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now the articles did set up a central government of sorts but a very weak one there was no executive no judiciary only a congress with no power to tax or to do anything important without a vote of nine out of the 13 states nor could they change the structure without a unanimous vote in favor of changing it each state had one vote and thus a virtual veto power this had all been done very consciously the states saw themselves as independent republics retaining sovereignty
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and joining into a loose confederation similar to today's united nations this came from their colonial past in addition to their fear of centralized power from the revolutionary era liberty was now to be guaranteed by decentralization and by state legislatures now despite the inherent weaknesses obvious of this frame of government much was actually accomplished under the articles the winning of independence and the obtaining of a favorable peace treaty in 1783
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with a western boundary all the way to the mississippi river the establishment of state governments with many social and political reforms the lowering of property qualifications for voting to extend the franchise frequent elections separation of church and state beginning of the abolition of slavery in northern states expansion of education and literacy and the creation of state bills of rights you also established the pattern for western expansion and settlement
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with the northwest ordinances of 1784 85 and 87. all western land north of the ohio river that had been given up by the states to the national government was to be surveyed divided and sold in 640 acre lots for one dollar per acre eventually there would be self-rule and admission to the union as anywhere from three to five new states on an equal basis when the population had reached 60 000 there were also guarantees of freedom of worship trial by jury and there was to be no slavery
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in this entire territory internationally trade was opened with the european powers under the articles of confederation and with asia and loans were extended to the united states but the problems under the articles appeared to many to outweigh these successes by 1787 and those problems were both external and domestic the confederation congress had no power to tax and thus no power to pay for an armed force or to pay its debts after the revolution the navy was sold at one point the army
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was down to 80 men rather than a national army reliance was placed on untrained and unreliable state militia now this lack of military power lack of powered attacks translated into no power in foreign affairs and no respect from the european powers the british locked the united states out of their mercantilist trading system they also violated the peace treaty by refusing to leave their posts in the northwest and they supported in fact incited indian resistance
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from those posts to american settlers nor was that the end of it spain refused to agree to the southern u.s boundary with florida and denied the united states the right to navigate the mississippi river and the right of deposit at new orleans it also incited secessionist movements in the southwest internally there is a post-war economic depression blamed on the articles people in each state demand relief the easiest way to obtain relief is to stop foreclosures on land for non-payment of debts
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to repudiate debts and or to print paper money so as to create inflation which will make repayment of debts much easier that is easy to do since there's little or no check on legislative powers in each state and creditors and men of property complain that the state governments are breaking the social contract by doing this and that this is as we would say today democracy run amok states are establishing their own currencies and trading systems there's a breakdown in interstate
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relations with the looming danger of states turning to european allies and thus opening the door to european intervention manipulation and control by 1786-87 there is fear of anarchy with shea's rebellion in western massachusetts daniel shays revolutionary war hero led a march of 1200 on the courts to stop foreclosures and then on the springfield arsenal to obtain weapons there was no national army to stop this the state militia did but they could just as easily have
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failed due to lack of training or even joined shea's men and after chase's defeat his followers were elected to office and stopped foreclosures anyway what all of this illustrated was the weakness of both the state governments and the national government now all of this convinced many that the present national government was incapable of defending the liberty one during the revolution and that a new frame of government was necessary what you have here one needs to realize
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is an elite definition of liberty it is not democracy at all it is individual freedom from tyranny or from any form of external control or interference but by the political thought of the day such tyranny or control could come from above or from below from mob rule that broke the social contract john randolph of virginia i think summed this up best in his famous quote i am an aristocrat i love liberty i hate equality now while the revolution has fought successfully for liberty and against
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tyranny from above liberty to these men is now threatened by tyranny from below simultaneously it is once again threatened by tyranny from above as well the danger of european intervention and the destruction of the entire republican experiment more centralized power is thus perceived as necessary to fend off the europeans and their tyranny from above and the tyranny from below that would come from democratic mob rule by 1786 those who think this way find support
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amongst the middle and lower classes as well as the upper classes creditors of course merchants and shippers who want a national commercial policy and power to break into the european mercantilist trading systems artisans who want a high national tariff westerners who want defense against the indians the british and the spanish land speculators wanting the same as well as protection from squatters in 1786 representatives from five states met in annapolis and asked congress to call a special
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convention to revise and strengthen the articles of confederation that would lead to the constitutional convention 55 men from 12 states gathered in philadelphia from may to september 1787. well who are they it's interesting to note who is not in philadelphia such revolutionary radicals is patrick henry sam adams thomas jefferson they are not there the revolutionary leaders franklin and washington are present but aside from these two venerable figures most of the delegates
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are quite young james madison and governor morris are only 35. rufus king and alexander hamilton are only 32. charles pinckney is only 29. almost all had continental as opposed to state experiences during the revolutionary war many were veterans of washington's continental army or the continental congress and that experience gave them a national as opposed to a state outlook at least one historian has labeled them the first true americans now are they conservative or
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revolutionary they are simultaneously both they are conservative as men of property who fear democracy and mar brule as destructive of liberty they are elitist republicans if you will rather than democratic republicans but simultaneously they are revolutionary in their desire to create something new a large republic with centralized power that preserves liberty rather than destroying it one needs to understand that this contradicts established political thought and experience
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that established political thought and experience held that republics only worked in small areas and that large centralized nations were best ruled by absolute monarchs the founders would turn this on its head and what you get here one might argue is a concept of creating an empire of liberty the men who gather in philadelphia were also willing to ignore their instructions to revise and amend the articles of confederation and instead they decided to come up with
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an entirely new frame of government one that they devised in secret sessions with locked doors and windows despite the summer heat one can argue that in some ways what you had here was a coup the basic dilemma how do you create a government strong enough to preserve liberty from tyranny of the mob and or from the european monarchs without giving it enough power to be tyrannical itself this dilemma was best expressed by the father of the constitution james madison later when he wrote
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the 51st federalist paper
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if men were angels madison wrote no government would be necessary if angels were to govern men neither external nor internal controls would be necessary in framing a government which is to be administered by men over men the great difficulty lies in this you must first enable the government to control the governed and in the next place oblige it to control itself a dependence on the people is madison continued no doubt the primary control on government but experience has taught mankind
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the necessity of auxiliary precautions the constitution thus begins with we the people sovereignty rests with the people but the document then separates sovereignty from rule by a series of intermediaries and it divides power between those intermediaries so as to avoid tyranny we know the system is checks and balances and it exists on two levels the separation of powers between the three branches of the new national government and the division of powers between that new national government
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and the existing state governments let's look at the separation of powers first the founders returned to the concept of balanced government due to the perceived excesses and weaknesses of the existing legislative governments what they decided to do was to combine elements of monarchy aristocracy and democracy within the new national government let's look at the president the president is a monarch the executive power but one indirectly elected via the electoral college and it was
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perceived at that time that the electors in the electoral college would be the aristocrats furthermore the president's term is limited to four years and the powers of the presidency are limited to those enumerated in article two of the constitution the senate is an aristocratic branch of government it is not directly elected by the people not in the original constitution you needed a constitutional amendment to change that it is done via the state legislatures
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one might argue that the people elect senators indirectly they vote for their bettors in the state legislatures and the state legislatures determine who will be the senators the term is lengthy six years with the powers listed in article one of the constitution the national judiciary is also aristocratic the democratic branch is to be the house of representatives with short terms frequent elections but still you have property qualifications for voting the theory at the time was that you had
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to have a stake in society in order to be able to vote each branch had the power to check the other branches for example the president is the commander-in-chief but congress appropriates funds for the armed forces and declares war the president makes judicial and diplomatic appointments and negotiates treaties but with the quote advice and consent of the senate and appropriations approved by both houses congress makes the laws but the president can veto them and the
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congress can override the veto with a two-thirds vote so much for the separation of powers what about the division of powers the new national government has enormous power but does not have a monopoly on power it is to be shared with the existing state governments and that is explicitly reaffirmed in the tenth amendment which states that all powers not delegated to the new national government or prohibited by it to the states are reserved to the states so that
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the states can be capable of checking the national government as the national government can be capable of checking the excesses of the state some powers are very clearly shared state militia are controlled by the state governments unless called into service by the president to active service for the national government by the president the document sets up a very large republic as i pointed out before in theory by political theory of the day it cannot survive madison in the 10th federalist
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paper turns this established political theory on its head he claims that a republic in a large area has a better chance of preserving liberty than a republic in a small area and in the process he explains the logic behind the entire system madison defines factions as the key problem and factions as a minority or a majority willing to ride roughshod over the rights of others to ensure its own interests in democracies a majority faction can easily gain control and destroy liberty
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now madison insists that such factions cannot be abolished without abolishing liberty they are inherent in human nature the key is to control them and that is to be done via checks and balances madison then argues that a large republic can do this better than small republics because the greater the population and area the more factions will exist and thus the last less chance of one faction dominating over the others as madison noted in this regard a major difference between a republic
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and a democracy was the greater number of citizens and the extent of territory that could exist under a republican
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government the smaller the society madison wrote the fewer probably will be the distinct parties and interests composing it the fewer the distinct parties and interests the more frequently will a majority be found of the same party and the smaller the number of individuals composing a majority and the smaller the compass with in which they are placed the more easily will they consert and execute their plans of oppression that's her small democratic society as for republics extend the sphere
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and you take in a greater variety of parties and interests you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens or if such a common motive exists it will be more difficult for all who feel it to discover their own strength and to act in unison with each other now despite agreement on such essentials disagreements among the delegates almost wrecked the convention major disputes pit large against small
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states northern against southern states delegates also split over just how much power to give to the national government at the expense of the states the large versus small state dispute focuses on representation in congress madison's virginia plan had called for representation in both houses of congress to be based on population small states like new jersey refused to agree the result was the so-called great compromise the house of representatives would be based on population
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but there would be equal representation for all states in the senate there is also a split between commercial and urban the commercial and urban north as opposed to the agrarian and slave holding south that split was already apparent and it led to a series of compromises there would never be an export tax because the south produced the cash crop there would be no ban on the slave trade for 20 years a two-thirds vote would be needed in the senate on all treaties
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and a slave was to count as three-fifths of a person for purposes of representation and taxation now some delegates fear that despite the checks and balances this new national government had too much power only 39 of the 55 who were in attendance signed the final document but the majority believed they had come up with something superior and unique a large centralized republic capable of acting strongly while preserving liberty but will their fellow citizens agree the document called for
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special state ratifying conventions in each state with nine states needed to put the document into effect intense opposition emerges virtually every state primarily from established groups who control state governments and fear such centralized power the result would be a major struggle in each state it was very close especially in the critical states of virginia and new york the federalist papers i quoted were written not only by madison but also by alexander hamilton and john jay in an
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effort to convince new york voters to accept the constitution the pro-constitution forces won for a host of reasons they were better organized they were on the offensive and they had the advantage of defining themselves as federalists really they were nationalists but by taking the title federalists what could their opponents call themselves anti-federalists that was quite a negative connotation also the call for ratification via state conventions special state conventions meant that the state
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legislatures which had a vested interest in the failure of the new system would be bypassed furthermore the federalists agreed to a key anti-federalist objection the lack of any specific bill of rights they agreed to create one as their first order of business under the new government the result would be the first ten amendments to the constitution north carolina and rhode island did not agree until 1790-91 but the rest did agree early enough for the new government to begin functioning in 1789.
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what do we have here the final document in the federalist papers showed the founders as hobsian realists who distrusted human nature and who sought to stop what they considered the excesses of the revolution in that sense they could be considered conservative and even counter revolutionary simultaneously however they are still lockheens and revolutionaries who wish to preserve their republican experiment against what they consider clear and present dangers and they are willing to try a radical
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unprecedented experiment to do so the only analogy they have for a large republic is rome and that is not a very reassuring one they see their constitution as fulfilling not negating the ideas of the declaration of independence a way to make republicanism work and thereby allow liberty to thrive now they succeed in establishing a new frame of government but in the process they left a series of unanswered questions for the future is this a union of the people is the house
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shows or of the states as the senate shows what is the proper balance between state and national power how can you have a republican empire of liberty when that liberty is based on the enslavement of others counting slaves as three-fifths of a human being does not really answer that question and can you really have an empire of liberty a large expanding nation run by a central government powerful enough to retain domestic order and military security without creating a tyranny from above
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within a few years the writers of this document will split on their answers to these questions they will fail to resolve them in their lifetimes they will change the system they created in trying to solve them and they will bequeath those problems to their successors and while some of those problems would be resolved in the 19th century be it by compromise or by civil war others remain central to our political discourse without throughout the 20th century and still today most notably the proper
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balance between state and national power and some would argue whether it is indeed possible to have an empire of liberty [Music] you
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