American Law 8.10.2011

III The origins of the US Constitution

1 The Constitutional Convention of 1787 : one rule = compromise !

There existed a group of very proeminent figures who wanted a complete new kind of union with an entirely different Constitution framework. These men who became known as federalists included James Madison, Alexander Hamilton, John Jay, John Adams and George Washington. The federalists were convinced that the US could not survive without a much more powerful national government. The problem for the federalists was that the standard of unanimity imposed by the article 12 ( Of confederation) made it impossible to legally increase the powers of the national government. Therefore, the federalists realized that they would have to find a way of creating an ultimate national government. Lead by James Madison, the federalists called for general reform of the governement in 1783 and the Congress authorized the Philadelphia Convention in February 1787 for the soul and express purpose of revising the articles of confederation. Once assembled, the delegates knew that compromise was to be an important element of the convention. Therefore, They formulated rules which permitted every issues to be reopened and which kept the proceedings secret in order to permit delegates to compromise political repercution. Although it was agreed that the power of the federal government needed to be straightening in relation to the state, there was considerable discussion for change. There were disagreements between the delegates of big and small states and betweenn the northern and southern states. The Virginia Plan was introduced by James Madison and it included a resolution for the creation of the supreme of the Court legislative judiciary and executive provided that both houses of congress be chosen on the basis of population. Such a scheme could have given the largest states, especially virginia pennsylvania and massachussetts, virtual control over the new national government. The smaller states objected and countered with the new Jersey Plan wich essentially abandoned the concept of a supreme government and called only for the modification of the articles of confederation. In order to retain the concept of a supreme government, compromise was needed, the result was what we call the Great Compromise or the Konnecticut Compromise which called for equal representation of the state in the senate while retaining the principle of representation by population in the house. Also, the difference between northern and southern states evolved in the slaves trade and the agravian economy in the south merchant economy in the north. The north wanted to aportion exepenses of the new governement by population including the slaves while the southern states did not desire to include slaves in the population count. Once again, the compromise was that slaves would be counted as three fith persons for purposes of both taxations and reprensentation. Other comporomises were made as to a possible veto of state legislation by the federal government wich was droppped or the immediate abolition of slaves trade by the federal government which was prohibited for 20 years. The delegates who signed the drafted constution in Philadelphia on september 16^th 1787 stipulated that it would take effect only after approval by ratifying conventions in at least 9 out of the 13 states. A negative vote by ny or virginia could destroy the enterprise because of their size and power and both delegates were sharply divided in their opinions of the constitution. In fact, the NY governer which cas George Clinton was a strong federalist and had already made clear its opposition. Therefore, the most intense debate was focused on NY. In particlar, 3 federalists, Jay, Madison and hamilton, undertook the right to write a series of articles in NY newspapers. The articles were later published as a book entitled the federalist papers although they originally appeared anonymously in NY daily newspapers under the name PuBLIUS.

2 Overview of the Federalists papers

The first federalist essay appeared in the Independant Journal in october 1787 just four weeks after the constitutional convention presented the US Constitution to the States for ratification. It was one of an eventual 85 essays wich argued in strong support of the Constitution and which were published in NY newspapers during the next 6 months. The political philosophy contained in the federalist papers is based on the theories of the european philosophers of the enlightment, it was based also on historical examples and on the experience of the US on the articles of conferedation. The essays not only provided philosophocal articles and theories about the nature of individuals and governments but also criticism of the weaknesses of the articles of conferedation . The main purpose of the essays was to convince the people of NY that a more energetic and stronger centralized government would be more protective of their liberty. The european philosophers influencing the statement of political philosophy in the federalist papers were Locke, Rousseau, Montesqieu and Thomas Hobbes. Many leaders realized that the self interests of the state would eventually tear the union aprt and that the articles of conferedation provided no legal or political means to stop it. States disagreed with one another over land claims, commerce regulations and frequently raised limitations against some states. Ex : although strictly forbidden by the articles, states established relations and treaties with foreign nations and refused to sent much needed tax money to Congress. The auhors of the federalist essays thought to explain the superiority of the new plan through the use of historical exemples but also references to the natural rights and behaviours of men and by appealing to the readers sense of patriotism. It is not clear wether the federalist papers had a decisive effect on NY reluctent ratification of the Constitution. But, there can be no doubt that they became and remained the most authoritative commentary on that document. In fact, the federalist papers are vey often quoted in US supreme court decisions. Hamilton outlined the intended content of the federalist papers ( number 1). Writing as Publius, he said the essay would cover 6 topics :

• utility of the union to achieve the political prosperity
• The uneffeciensy of the present confederation to preserve that union
• The necessity of a government at least equally energetic with the one proposed by the constitution
• The conformity of the proposed Constitution to the true principles of republican government
• The analogy of this Constitution to the people 's own states Constitutions
• The additional security with the adoption of the Constitution which will preserve a true republican government based on liberty and prosperity.

The first 50 essays of the federalists were about the first four topics. Essays to 51 to 66

House of reprensatives and the senate

67 to 77 it covers the executive brench

78 to 83 federal tradition

84 response to objections to the absence of a bill of right in the constitution.

85 includes some comments on topics 5 and 6 but it mainly urges people to support the ratification of the Constitution because of the difficulty of assembling a new constitutional convention. Federalist such as Robert YATES, Richard Henri Lee and George Clinton responded to these arguments in anonymous articles on their own using names like Brutus or federal framer. They criticized the constitution and warned that it would create a distant central power divorced from local needs and democratic accountability leading to renewed tyranny like that of the British epire. This diverse group of men was committed to preserve the diversity of the state and the diverty of local democratic governement of the best means of preserving liberty and as the only sound basis for republican gvernment. They were often ..to the idea of a string executive as well ad to the power of an unelected juridiciary. ONCE it became clear to them that theyhad lost the struggle to prevent the ratification of the new Constitutin, they put their energy into securing a federal bill of rights to constrain the power of this new central government. On July 2^nd 1787 with new Hampshire ratification the US Constitution became accepted formally and the comity was to plane the transistion of the new government. March 4^th 1787 : New US government under the US Constitution formally went into

As a conclusion, the admission for a bill of rights was necessary and it was a vital concession made in 1791 by the federalists to secure the support of the enty federalists camp. The bill of rights became the first 10 amendments of the constitution US. Nevertheless, the federalist had secured a major victory by impsing their vision of the national future. Finaly, lthough the Constitution went into force in the spring of the 1787, its substance and meaing have constinued to be the source of contreversy and struggle and even still today.

Check and balances

The Us constitution is the odest leaving Constitution today. It contains the basic principles upun wich the amercian republic is granded. It was drafted as a constitution convention in Philadelphia in 1787. It was ratified by 9 states out of 13 by Junes 21^st 1788 and it was emplimented in 1789. What are the main principles ?

• Separation of powers
• Establishment of a Check and balances system
• Guidlines for both federal and state governement action and activity
• Bill of rights
• Amendments

I Overview of the US constitution

Preamble

It provides a source of powers lead out by the rest of the constitution ( preamble). Also, common defense is mentioned in the preamble. The proponance of a strong union and those in favor of strong state agree on this point. One of the main objective of the union is to defend the interest of the Americans against invaders or former colonists meaning England. The premble declares that a purpose of the C. Is to promote the general welfare. Finally, The US Supreme Court does not consider thatthe preamble grants any particular authority to the federal government or that it prohibits any particular authority.

Article 1 : Legislative powers

It deals directely with the legislative branch also known as Congress. It establishes a bicameral entity with a senate with 100 senators ( 2 per state) and a House of representatives based on proprotional representation. Today, there are 435 voting representatives.

Clause 3 : Blacks were not free persons. They were counted as Three fith of all other persons. These words are still appearing on the US Constitution, the part of this clause relating to the calculation of the number of people of each state was changed by the 40 th amendement in 1868 and the equal protection clause.

Section 8 clause 1 and 2 3 4 5

As a legislative body, congress has certain inherent powers :

• enumerated powers : listed from clause 1 to clause 17 of the section 8.
• clause 1 tax and spending
• As to clause 3, originally the commerce clause cas intented to start the interferences of the state with trade. Throughout the 20^th century, the federal courts interpretated this clause as a mean of expending government power over the states. Today, the commerce class is a basis of important peace time powers of the national government as well as an important reference for judicial review of state actions. It has so emplied power.

Clause 18 : Necessary and proper clause : Chief Justice John Marshall ( of the supreme court) developed the notion of implied powers in the 1819 case called Mc CULLOCH versus Maryland. The issue in this case was the constitutionality of congress establishment of a bank for the US. Chief justice Marshall admitted that the federal government was a government of limited powers and that there was no specific mention in articlle 1 of the C. Of any power to constitute a bank. But,marshall held that the grant of explicit enumerated power necesseraly imlplied the power to do what was appropriate to carry out those powers. Thus, since congress had explicit poiwers to lay and collect taxes to borrow money and to regulate commerce and since a bank would clearly assist in carrying out these powers. Therefore, congress had the implied power to create a bank.

Section 9 article 1 2 3

clause 2 Habeas corpus it is a both british and american democracies stipulating that an individual may not be deprived of her or his freedom of movement without legal guarantees of due process of law. ( due process of law is guaranteed by the 5^th amendment which is prtecvtion of gov and the 14^th am which is protection of the state ...)

clause 3 A bill of attender : It is a legislative measure which declares somebody guilty of a crime without a trial and set's punishment.

Exose facto law : After the fact law, it is prohibited to pass laws that criminalized actions that were not unlawful when they were carried out.

Section 10 clause 1 2 3

These are articles denied to the state.

Clause 1 : basis of federalism and the distribution of power between the federal government and the stae.

Clause 2 : executive power : it was used to depart a discussion...little to use as a departure point in the

it deals with the us executive branch otherwide known as the presidency. The us was the first country to create the office of the preisdent as head of a modern republic. 43 presidents have succeddeed the first president ( George Washington). The president's role and duties consist essentially in enforcing national law as presendted in the constitution and enacted by Congress. Executive power is vested in the president by article 2 section 1 of the C.

Clause one artilce 2 sets election process with an electoral college.

Article 2 Section 2 Clause 1 : 1 )The president has powers over external affairs. He is the commander chief. Although lacking the power to declare or initiate war, the psdt has extensive powers on arm forces in armed... In this cases the psdt does not need a congressional declaration of war. The last time USA declared war : 1941 2) Foreign relations : has the power to receive ambassadors and make treaties. The treaty is made by the President by and with the adive of the Congress (2/3 of the senators) 3) internal affairs powers and duties : psdt is powered to grant pardon for offences against the US except impeachment. This power applies before, during and after tiral but only on criminal trials. Article 2 Section 3 : Speech : « State of the Union ». This adress by the psdt not only reports on the condition of the nations but also allows the psdt to outline his legislative agenda and national priporities to Congress. Originally the framers of the C° intended to specy various departments of the executive branch.Congress established the various departments of the executive branchs. Has created14 departments : Agri commerce education energy housing and urban development interior labour state defense transportation treasury justice veterans' affairs Health and Human services The heads of these departments are called Secretary. They are appointed by the psdt and are referred collectively as the Psdt Cabinet. Section 4 : HELENE & VICTOR IMPEACHMENT MECANISM AND EXAMPLES