Civil Liberties

I. Making Constitutional Rights Apply to the States

A.    Early Practices—for many years the Constitution was ratified, the rights it protected, including the Bill of Rights, only applied to the national government.

1.      Barron v. Baltimore (1833)—Barron sued the city of Baltimore because construction the city undertook caused his busy wharf to silt-up enough that it could no longer accommodate large ships. Barron claimed this action violated his 5^th Amendment rights because his property had been “taken” without just compensation, and without due process of law. The Court, unfortunately for Barron, found that the 5^th Amendment was only applicable to the federal government.

2.      The Slaughterhouse Cases—after the end of the Civil War, the city of New Orleans passed a law that severely regulated the operation of slaughterhouses in the city. Because of concerns over health hazards regarding these establishments, the city closed all of them operating in the city, and created the Crescent City Livestock Landing & Slaughterhouse Company to operate as a city-controlled monopoly. The company agreed to observe all laws regarding the disposal of waste, the prices of cattle, the price of beef, and that they would allow butchers in the city to operate within its confines, and pay them a reasonable rate. This was not enough to satisfy the butchers in New Orleans, however, a group of whom sued the city claiming their 14^th Amendment rights were being violated in regard to the equal protection clause. The majority of the court dismissed this claim, pointing out that the 13^th, 14^th, and 15^th Amendments were intended by Congress to grant freed slaves basic constitutional rights. A dissenting opinion, written by Justice Stephen J. Field, portended the future, arguing that the 14^th Amendment granted Americans the same rights in the states that they enjoyed with the Constitution and the federal government.

3.      Chicago, Burlington, and Quincy Railroad v. City of Chicago (1897)—The city of Chicago, in an expansionary phase, needed to extend a street through what was then private property—including the right-of-way for the Burlington Railroad. The city compensated the owners of the property using their rights of eminent domain. The railroad company sued because they only received $1 in compensation. The Court, for the first time (in a 7-1 decision), found that the 14^th Amendment applied to the 5^th Amendment rights about due process, and meant that states and other governmental bodies had to ensure that they followed constitutional practices in this matter—although they also found that the Illinois law regarding eminent domain, while flawed, had been followed in this case, and that the railroad was due no further compensation.

4.      Gitlow v. New York (1925)—Gitlow, a socialist, was arrested in New York for distributing literature that called for the use of strikes and other social upheavals to foment socialist revolution. Gitlow’s attorneys argued that, since no revolution was fomented, that the state was prohibiting utterance which in fact did not result in violent action. The Court, while finding that through the 14^th Amendment that the 1^st Amendment did apply to the states, also found that a state may prohibit speech which advocates “dangerous tendencies” like revolution.

5.      Palko v. Connecticut (1937)—Palko was charged with murder in the first degree in the state of Connecticut. At the trial, however, the with the evidence presented, the jury only found Palko guilty of murder in the second degree, and Palko was sentenced to life in prison. The state later uncovered other, more incriminating evidence, and put Palko on trial again for the same murder. Palko’s attorneys argued that he was placed in double jeopardy—that he was being tried for the same crime twice, in violation of the 5^th Amendment. In the appeal the the US Supreme Court, the court found, for the first time, that through the 14^th Amendment, that the 5^th Amendment was applicable to the states, and stayed Palko’s execution.

II.                Why Are Americans so Preoccupied with Rights?

A.    Freedom of Expression—over the past two centuries the courts have more or less steadily broadened the definition of free expression.

1.      Alien and Sedition Act (1798)—made it illegal to publish “any false, scandalous, and malicious writing” against the president of member of Congress. These restrictions placed on the freedom to criticize the government became a major issue in the 1800 presidential election, and contributed to the defeat of John Adams in that election. Compare the criticism of the president then with more recent times, when President George W. Bush was regularly ridiculed, or the claims that President Barak Obama had falsified his Hawaiian birth certificate.

2.      Alien and Sedition Act (1918)—made it illegal to utter or publish anything that could be construed as impeding the war effort. Most famously, this law was used against Eugene V. Debs, who was arrested in Canton, Ohio, for calling the impending US involvement in World War I a “rich man’s war.” For comparison, consider the government reaction against the protests of the US involvement in Vietnam, or the protests against the Iraq war (including Desert Storm) before military engagement began.

3.      Laws against “obscenity”

a.      What is obscenity?

b.      Margaret Sanger and the dissemination of birth control information

c.       Pre-code Hollywood; self-censorship and the Hays Code; the evolution to the Motion Picture Association of America (MPAA) ratings system.

4.      Evolution of permissible expression

a.      Preferred position—the right of self-expression, while not absolute, does occupy a higher, or “preferred” position than other constitutional rights

b.      No prior restraint—with scarcely any exceptions, courts will not allow the government to restrain or censor in advance any speech or writing—even when they will allow punishment after the fact.

c.       Imminent danger—You may utter inflammatory statements statements or urge people to consider committing dangerous actions, but unless there is an “imminent danger” that those utterances will actually lead to illegal activity, they are constitutionally protected.

d.      Neutralilty—the government must be neutral—it cannot favor one particular group over another.

e.       Clarity—if a law forbids some form of expression, it must contain a clear definition of it, so people are certain as to where the line has been drawn.

f.        Least means—if it is necessary to restrict the rights of one person to speak or write to protect the rights of another, this restriction should involve the least intrusive means to achieve that end.

5.      Unprotected speech

a.      Libel—injurious written statements about another person (and the fact that they are true is not necessarily a defense).

b.      Restrictions on symbolic speech—usually, one cannot claim that an illegal action should go unpunished because it conveys a political or social message

c.       Fighting words”—calling someone a nasty name to provoke them is not protected speech (like “Dr.” Laura Schlesinger)

d.      Incitement to immediate violent action—calling for an angry crowd to riot would not be protected speech.

e.       Obscenity—is not protected expression, but there is great difficulty in determining what obscenity is—although, to paraphrase Justice Potter Stewart, we certainly know it when we see it.

6.      Free Expression for “the people”—but who are “the people?” Does this include high school students? Corporations? Various Associations?

a.      Campaign finance—is money a form of expression?

7.      Free Speech for Me, But Not for Thee—people are quick to defend freedom of expression for themselves, and for the ideas that they agree with, but often call for restrictions on freedom of expression for others who express unpopular ideas.

a.      American Civil Liberties Union (ACLU)—founded to defend persons arrested and tried under the Alien and Sedition Act of 1918, the ACLU is an association of free expression absolutists. Often depicted as a “liberal” organization, the ACLU has also defended the rights of the American Nazi Party to march in Skokie, Illinois, where many residents were Jews (and a sizable number were Holocaust survivors).

III.               Church and State

A.    Free Exercise Clause

1.      Mormon Church/Islamic practice of multiple wives; the Native practice of ingesting peyote

2.      Questions of Conscience—persons whose beliefs dictate that war is immoral are exempted from directly serving in the military—although not from paying taxes to support fighting a war.

B.     The Establishment Clause—“Congress shall make no law respecting an establishment of religion…” Does this mean there should be some kind of “wall” separating church and state?

1.      Historical antecedents—the United States was a haven for religious dissenters—but often those dissenters made their sect the tax-supported established church. The multiplicity of religious sects, and the disputes engendered because of it, let the Framers to conclude that freedom of religion could best be promoted on a national basis by prohibiting the establishment of a national church.

2.      Influence of the Enlightenment—many of the Framers, influenced by the Age of Enlightenment, were Deists—believers in a higher power somewhere, but who rejected the divinity of Jesus Christ.

3.      Wall of Separation—the wording is from Thomas Jefferson (a deist), who sought to disestablish the Episcopal Church in Virginia, rather than in the Constitution anywhere.

a.      Everson v. Board of Education (1947)—the “wall of separation” principle is announced.

b.      In God We Trust/under God”—the former phrase was added to coins and paper money, and the latter phrase was added to the Pledge of Allegiance in the 1950s

c.       Ten Commandments (1956)

d.      Teacher-led prayer in schools banned 1962

IV.               Crime and Due Process

A.   Exclusionary Rule—holds that evidence gathered in violation of the Constitution cannot be used in a trial. This rule has been used to implement two provisions from the Bill of Rights—the 4^th Amendment right to be free from unreasonable search and seizure, and the 5^th Amendment right not to be compelled to give evidence against oneself.

1.      Wolf v. Colorado (1949)—Julius A. Wolf was convicted in Colorado of performing illegal abortions—but the evidence was gathered in an illegal seizure, since the police did not present a search warrant before entering the premises. Wolf’s lawyers argued that this should prevent the evidence from being used in court. Justice Frankfurter, in the majority opinion held that while some of the 4^th Amendment could be applied to the states, it could not be done through the 14^th Amendment, since it simply was not applicable to the first 8 amendments to the Constitution—“other measures” would have to be relied upon to prevent police from undertaking illegal searches.

2.     Mapp v. Ohio (1961)—the Supreme Court effectively overturned Wolf v. Colorado, and held that the 4^th Amendment prohibitions on illegal search and seizure was applicable to the state through the 14^th Amendment.

B.     Search and Seizure—when is a search of one’s person or belongings reasonable?

1.      Search warrant

2.      Probable cause—when a person is caught in the act of doing something illegal, or are arrested in suspicion of engaging in some illegal act, police may search you, things in plain view, and things under your immediate control.

a.      Driving while black/brown

b.      Breathylizer test

3.      Miranda Warning—as seen on countless cop shows since the late 1960s

4.      Gideon v. Wainwright (1963)—established the right to counsel for all indigent defendents, rather than only those in capital cases.

5.      Good Faith Exception—the admission of some evidence that was gathered in violation of the Constitution is now permitted if the violation was the result of a technical or minor error.

C.     Terrorism and Civil Liberties—the attacks on 9/11 have greatly altered the procedures the government may use to investigate terrorist attacks—but these “protections” also threaten civil liberties.

1.      FISA  Courts—established by the Foreign Intelligence Services Act (1978), in response to the excesses that came to light during the Watergate investigation. FISA was amended by the Patriot Act of 2001. The government goes to a FISA court to obtain warrants authorizing the tapping of telephone, cell phone, internet connections, and voice mail of suspected terrorist activity.

2.    Grand jury—the government can now share with other government agencies what was learned in secret grand jury hearings.

3.      Immigration—the attorney general may hold non-citizens who are thought to be a security risk up to 7 days without charges; if not charged with a crime or deported after that time, the person may be held indefinitely as long as they are certified as a security risk.

4.      Money laundering—the government was given new powers to track the movement of money across US borders and among banks.

5.      Trials by military tribunals, rather than in civilian courts; “enemy combatant” status.

Written Assignment 2

The first ten amendments to the US Constitution, known as the Bill of Rights, are restrictions placed on the Federal government, either upon its relationship with its citizens, or with the states that constitute the United States. One of the more controversial parts of the Bill of Rights is the Second Amendment, which states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Does this protect the individual’s right to keep and bear arms, or does this mean something else? If being part of a “well regulated Militia” isn’t part of the responsibility to own guns, why is it the first clause? This question should be thoroughly examined in a 2-3 page, double spaced paper with conventional 1 inch margins, due at the beginning of class Wednesday, May 30

The Constitution and the Framers

Part 1 The Articles of Confederation -- – after independence was declared, a new government had to be formed to help the united colonies prosecute the war against the common enemy.  Because it was believed at the time that government was itself evil, and should therefore be kept to a minimum, the government shaped by the Articles of Confederation followed this pattern.

I.                   Genesis

A.    Benjamin Franklin – introduced the first draft of  articles of confederation to the Second Continental Congress in July, 1775, but it was never formerly considered by that body.

B.     Silas Deane – later in 1775 introduced another draft of articles of confederation, and this was followed by a proposal from the delegation from Connecticut (of which Deane was a member), which was probably a revision of Deane’s proposal.

C.     John Dickinson – presented a fourth version of articles of confederation, and it was his proposal which became the basis for the Articles of Confederation which was finally agreed upon.  Dickinson prepared his proposal in June of 1776.

                                                              i.      Congressional committee – revised Dickinson’s proposal during June, and presented the revised document to the Second Continental Congress in July of 1776.

                                                            ii.      Congressional debate – late July and August were spent by the Second Continental Congress debating this document.

                                                          iii.      Third version of Dickinson’s document – was printed by Congress in the fall of 1777.  After further debate, the Articles of Confederation was approved by Congress in November of that year, and sent on to the states for approval.

II.                Ratification by the States

A.    Overwhelming approval – twelve of the thirteen states agreed to the document—all except for Maryland.

                                                              i.      Maryland’s concern over western land claims – land speculators in Maryland had staked claims in western lands (meaning, at this time, anything west of the coast), and was interested in protecting those claims—or, at least, preventing its larger, more powerful neighbor Virginia from exercising its rights to its claim of land which stretched all the way to the “great southern ocean” (or at least to the Mississippi River).

B.     Jefferson’s proposal – Thomas Jefferson suggested that Virginia (as well as Massachusetts, Connecticut, the Carolinas, and Georgia) cede their claims of western territory to Congress, but only if the claims of land speculators were voided; and to allow new states to be formed from these lands, which would eventually join the original thirteen as full and equal members.

C.     Ratification – with the resolution of the western land question, the Articles of Confederation were ratified and became the governing document of the land on March 1, 1781.

III.             The Form of the New Government

A.    Unicameral Legislature – unlike the present-day Congress, the Congress under the Articles of Confederation was the only governmental body; there was no Executive Branch, nor a Judicial branch.  There was also no upper house (or Senate).

                                                              i.      Authority to make treaties and alliances.

                                                            ii.      Authority to make war and peace.

                                                          iii.      Maintain army and navy.

                                                          iv.      Coin money.

                                                            v.      Establish postal service.

                                                          vi.      Establish admiralty courts.

                                                        vii.      Manage Indian affairs.

                                                      viii.      Last resort of appeal for disputes between states.

B.     Sovereignty of the States

                                                              i.      Could not impose restrictions upon trade or movement of free white citizens between the states.

                                                            ii.      Extend “full faith and credit” to the judicial  proceedings of other states.

                                                          iii.      Amendment of the Articles of Confederation – would have to be agreed upon by all the states.

IV.             The Problem of Taxation – and Slavery

A.    Apportionment (how the population would be counted for the purpose of affixing the amount of money a state would owe to the central government.  This term is still used in this same vein, and also in determining how many representatives each state gets in Congress) – question of whether the amount of money each state owed would be determined by the total number of residents in each state (including slaves) or whether only free whites should be counted.  Eventually, Congress decided to avoid this tabulation, and instead rely upon the value of privately held land and the improvements upon that land in each state to determine how much money each state should remit.

a.       Slavery – as is evidenced by the above resolution to the question of apportionment, the question of slavery was one that was studiously avoided during the debate on the Articles of Confederation.

b.      Taxation – Congress had no power to directly tax the people that it governed; that power remained entirely with the states.  To raise money to fight the Revolutionary War, the central Congress was totally reliant upon the states to remit the amount of money that they owed.

                                                                                      i.      War debt – the central government borrowed money to finance the fighting of the Revolutionary War.  The central government also assumed the debt that each state incurred in fighting that war.  To service this debt used up many of the resources that Congress had at its disposal.

B.     Foreign relations

a.       Continued problems with Great Britain

                                                                                      i.      Restrictions on trading with the British West Indies – which meant difficulties in obtaining sugar and molasses to turn into rum, a major industry in the United States at the time.

                                                                                    ii.      British forts maintained in the Great Lakes region – in apparent contravention to the Treaty of Paris, the British maintained forts in American territory; this was not only an affront to the sovereignty of the United States, but it also kept alive in natives the hope that the British would assist them in maintaining their lands and help in their conflicts with the Americans.

V)  Domestic Relations – in the Articles of Confederation, the main role of the central government (there was no “federal government” at this time, because the “federal” style of government had not yet been invented) was to adjudicate disputes between the various states.

I.                   A) Shay’s Rebellion – Shay’s is only the most famous (and most written about) of the rebellions of this time; similar rebellions took place in other colonies (including North Carolina, with its Regulators).

1.      Causes

2.      Economic – Lack of money on the frontier (meaning, at this time, just a few miles inland from the Atlantic Ocean) caused a great burden upon the farmers there in an increasingly cash-based society; when this economic hardship was added to the taxes that were being collected to pay off the Revolutionary War, these frontier farmers began to demand relief from this burden from their government.

a.       Tightness of money – In part because much of the paper money was not backed by the full faith and credit of an established government, but by a locally established bank which was not always run on sound business principles, many people were reluctant to accept paper money, preferring specie (gold coin); lack of specie meant that much of the economy relied upon barter—except the government did not accept eggs, milk and cheese as payment on taxes.

b.      Payment of Taxes – For the taxes paid by those farmers on the frontier, they received very little in the way of government services.  Much of the money collected by the U.S. Congress went towards the payment of the Revolutionary War debt; the money collected by the state was spent in the costal areas, for improvements in docks, harbors, warehouses, and other projects that facilitated trade.

3.      Changes in Society

a.       Class conflict – The ideals of the Revolution had obscured the class divisions in colonial society; with the end of the fighting, many in the upper class, or the “better sort,” were attempting the quell the rebellious lower classes and reassert their authority in running the government.

b.      Land patents – Many soldiers in the Continental Army had be granted land on the frontier in lieu of money payments; these patents many had to sell for pennies on the dollar to pay off debts as they faced mounting debts.

B.     The Rebellion

1.      Fall of 1786 – Another poor harvest increased desperation on the Massachusetts border.  As fall turns into early winter, a group of farmers come under the nominal leadership of Daniel Shays—Shays becomes the leader because he was formerly a colonel in the Continental Army.  This rag-tag group is able to secure some weapons, and it marches on the court sessions being held in various towns in western Massachusetts, forcing them to suspend, and therefore halting bankruptcy and foreclosure proceedings from taking place.

2.      March on Springfield, Mass.

a.       Government’s armory – Group marches on Springfield to try and seize armory to gain more weapons.  This attack was repelled by detachment at the armory; Shays and his followers are eventually rounded up by the Massachusetts militia, recruited from the Boston area (made up of merchant officers and artisan soldiers).

C.     Aftermath

1.      Trial – Shays and some of his followers were tried, found guilty, and sentenced to hang.  On the execution dates, each of these men were given gallows reprieves, to emphasize the element of “mercy” these individuals were shown by the “better sort.”

2.      Call for convention – This episode, and other like it in some of the other states, emphasized for the ruling class how precarious

Their rule was under the current Articles of Confederation; a general agreement was quickly reached that another convention was needed to hammer out some of the problems with this document.

Part 2--The Constitution and the Restriction on Democracy – the ruling elite were able to use the economic crisis of the post-revolutionary period to create a new government that they were more easily able to dominate.

I)       Articles of Confederation – because of the belief that the government which governed the best governed least, the government that was created by this document created a weak central government, one that was reliant upon the states for support and the money with which to run it.

A)    Economic problems – a series of economic problems in the post-war era undermined support for the Articles of Confederation.

1)      Inflation – the Continental dollar traded against the Spanish dollar at the rate of 3 to 1 in 1777, 40 to 1 in 1779, and 146 to 1 in 1781, by which time the Congress had issued more than $190 million in dollars.  The tremendous increase in prices led to a great outcry, which state and local governments responded to this crisis with attempts at wage and price controls.

(a)    Perceptions that the problems were caused by hoarding, and often mobs in towns “called” upon merchants suspected of hoarding—or worse, of price gouging—to demand that they sell their merchandise at “fair” prices; those who refused often (but not all of the time), had their merchandise removed and sold by others at a “fair” price.

2)      Deflation – in the years immediately after the Revolutionary War, the fact that the new United States had few manufacturing industries, and continued to export raw materials and import finished goods, meant that the trade deficit continued to grow with the US’s largest trading partner, Great Britain.

(a)    Currency drain – in order to pay for goods imported from Great Britain, US merchants had to pay in gold or silver, which meant that the supply in the US decreased

(b)   Public debt – the deflationary spiral occurred at a time when the United States had a huge public debt to pay off from the money the government borrowed to finance the war; this meant that the money which was borrowed was even more expensive to pay back than had been anticipated.

B)    Shays’ Rebellion – backcountry farmers became disenchanted with the lack of response on the part of the government, and began protesting and resisting the effects of economic disarray locally.

1)      Closing courts – local courts had been throwing debtors into jail when they could not meet their debts; local militia groups rallied and began marching on these courts and closing them—just as they had during the Revolutionary War period.  With the courts not able to meet, they could not throw any more debtors into prison.

2)      Action widespread – although the action in western Massachusetts gets most of the attention (this is were Daniel Shays and his compatriots operated), these same kinds of protests occurred at other places, as well.  In fact, similar kinds of protests took place in every state in New England except Rhode Island (and not in Rhode Island because farmers had already captured control of the state government); a large scale protest involving over 200 people took place in one county in Maryland; near York, Pennsylvania, an auction whose proceeds were earmarked to pay off debt was halted by armed men.  James Madison in Virginia claimed that officials in that state had on numerous occasions watched prisons, courthouses, and clerk offices burn because of the actions of large groups of people.

C)    Aftermath – the climate that all of this conflict and uncertainty created made many people receptive to the idea that changes were necessary to the Articles of Confederation.  A small coterie of political leaders were advocating greater centralized powers for government, although most American people, if opinion polls were taken at the time, would have opposed this.

II)    Federal Constitution

A)    Localism v. nationalism – in the years after the Revolutionary War, most Americans advocated the idea of localism over nationalism—that is, they closely identified themselves as residents of a specific locality (say, Boston or Baltimore) rather than as “Americans.”  The further removed from locality that government became, for most Americans, the less loyalty that they felt towards that government (Civil War example—people like Robert E. Lee did not feel they were being disloyal towards the United States, but displaying loyalty toward their state, which had chosen to leave the Union; most northern supporters of the Union did so by volunteering to serve in their state militias, not in the Federal Army).

1)      Fear of government power – most Americans feared a strong central government; after all, that the power of a strong central government had been one of the driving forces behind the Revolution.

2)      Fear of government being too removed – the fear that a central government would be too far removed from the people to be responsive to those people (also one of the driving forces behind the Revolution).

B)    Annapolis Convention – representatives from several of the larger states (namely Virginia, Maryland, Pennsylvania, and New York) called on all of the states to send representatives to a convention in Annapolis to discuss the viability of the Confederation; with the exceptions of Rhode Island, Massachusetts, New Hampshire, and North Carolina, all of the states did so.  At the Annapolis Convention it was decided that a convention of all the states would be called for May of 1787, “… to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every state will effectually provide for the same.” (Alexander Hamilton, “Proceedings of the State Commissioners at Annapolis, Maryland, September 11-14, 1786”)

1)      Authority – the call for the upcoming convention to meet in 1787 in Philadelphia was to make the necessary changes to the Articles of Confederation—not to create a new document of governance for the United States (discuss legality—which seems okay since this new document was sent back to the states for approval).

III) Meeting at Philadelphia – the vaunted meeting at Philadelphia created a new instrument for governing which removed much of the direct control that voters had over their government

A)    The Constitution and Elections – it is perhaps easiest to see how the new US Constitution subverted democracy by closely looking at how elections for officials were to be run.  The only politicians directly elected by the people in this new federal government were in the House of Representatives; everyone else who held an elective office in the federal government was at best indirectly elected—so they were removed from being directly responsive to the people.

1)      Election of representatives – every two years, directly elected by the people; number of representatives was to be determined by population.

2)      Senate – two senators, chosen for a six-year term, and selected by the state legislature (and stayed that way until the 1910s).  Not only are senators’ terms three times longer than representatives, but also the people they are to serve did not directly elect them.

3)      President – four-year term, elected by the electoral college (people “pledged” to vote for a specific candidate, although they are allowed to change that vote); there has never been a popular election for the highest office in the land.

4)      Supreme Court – completely “independent” (or, to put it another way, unaccountable to the American people), and they serve for life (or until they feel like retiring).

B)    Checks and balances – in Madison’s scheme of things, the three branches of government were suppose to provide a check on the other’s powers, and keep one branch of government from overpowering the others—but did the “founding fathers” really see the three branches as equal partners in this endeavor?

1)      Legislature – charged with the responsibility to make laws; this power, it is clear, was assumed by those responsible for creating the constitution, was assumed to be the greatest responsibility, so it is clear that the “founding fathers” intended Congress to be the senior partner in this governmental triad.

2)      Executive – charged with enforcing the laws that the legislature makes; this office has probably witnessed the greatest change since its inception.

3)      Judicial – to hear disputes arising under the Constitution; nowhere in the Constitution is the Supreme Court given the power to decide the constitutionality of a particular law—that power was assumed by the Court itself, and was unchallenged by Congress.  Congress, in fact, has within its powers to take away this practice of judicial review by legislative fiat—but in practice that right is rarely used.

C)    The Challenge—Madison and the other Framers at the Convention faced not only the challenge to balance power between the three divisions in the federal government, but also to balance power between the federal government and the state governments.

1)      Virginia Plan—Madison arrived in Philadelphia with a plan of government that he had already devised and sought support for among his fellow delegates from Virginia, which has become known as the Virginia Plan. From this plan we get the three divisions of government, with that government being empowered to act in expressed matters of government—and the ability to override any and all state laws. The Virginia Plan also changed the way the states were to be represented in Congress, which was by population rather than each state having a single vote.

2)      The New Jersey Plan—smaller states, frightened by the power that large states would gain in this new document, instead proposed minor changes to the Articles of Confederation, and that representation of the states in congress remain unchanged.

3)      The Great Compromise—to reconcile these two plans, a committee was formed, the compromise was reached, and then the compromise was debated before the entire body for another week and a half. The result was that many elements of the Virginia Plan were retained, which created a stronger central—or, as it might now be called, federal—government, but safeguarded the rights of smaller states by retaining equal representation of the states in the Senate, but allowing representation in the House be apportioned by population.

D)    The Ratification by the States—after the Constitutional Convention—which had met in secret in Philadelphia—overwhelmingly approved the new Constitution, it was sent to the various states for ratification. As moved by the Convention, states were suppose to only vote yay or nay on the document; they were not allowed to propose amendments, or in any way change the document. Madison argued, probably correctly, that allowing the various states to change the document would kill any chance of its ratification—but this gave more ammunition to opponents who argued that this was an attempt to impose a new tyranny over the American people.

1)      Pennsylvania—perhaps no state had a more democratic constitution than Pennsylvania, which had a very low property requirement for voting, and a unicameral legislature. This began to change after the end of the Revolutionary War, however, and proponents of a stronger, centralized government both in Pennsylvania and the nation as a whole saw this as an opportunity to consolidate power—and pushed through passage of the new Constitution with very little debate. This confirmed the suspicions of opponents, and alarmed many who saw this as a naked power grab.

2)      Massachusetts—Federalists—the name given to those who supported the new Constitution, and worked for its passage—were in the majority in Massachusetts, and were therefore more willing to allow an open debate on the merits of the document. Despite this advantage—probably in recognition of the controversy of the tactics in Pennsylvania—proponents promised opponents to seek a Bill of Rights at the earliest moment the new government was formed.

3)      Virginia—while the relatively quick and painless ratification of several states seemed to create a great deal of momentum for early ratification of the document, opponents in Virginia—chief among them Patrick Henry—brought up many objections. This slowed the momentum, and gave credence to opponents who objected to not being able to offer amendments to the document.

4)      New York—following the lead of opponents in Virginia, opponents to ratification in New York were able to raise a number of objections, which gained a good deal of support. In response, Alexander Hamilton began to publish a number of letters supporting ratification anonymously in sympathetic newspapers; he enlisted John Jay and James Madison to assist him in this project, and all of these letters were published under the nom de plume of Publius—and are known to us as the Federalist Papers.

E)     Bill of Rights – was reluctantly acceded to by early Federalists in order to quell fears of both friends and foes of the new Constitution; Madison and Hamilton both claimed that no “bill of rights” was necessary, since all rights not explicitly claimed in the Constitution remained safe for individuals and the states.

1)      Second Amendment “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Does this guarantee the rights of individuals to keep guns, or the right of states to have militias?

2)      Fifth Amendment – the right not to self-incriminate.

F)     The Whisky Rebellion – backcountry farmers viewed this tax on grain (it was cheaper for them to transport the grain they had to sell as liquor than in bulk) as an unreasonable tax, which they refused to pay—as their fathers in the Revolutionary generation had refused to pay unreasonable taxes.  George Washington used his powers as President to call up 13,000 federal troops (more than he himself had ever commanded in the Continental Army) to round up these tax evaders.  A few were eventually found, and brought to Philadelphia for trial; two who were found guilty of treason eventually received presidential pardons.

G)    The Constitution and Slavery—It should be noted that slavery existed in all of the colonies at the start of the American Revolution; one of the chief complaints in the Declaration, in fact, references the fact that one of the King’s representatives in the North American colonies attempted to foment a slave rebellion in Virginia (Lord Dunmore). This began to change in the northern states, where slavery was less important to economic well-being of elites, and in most of these states slavery either ceased to exist by the end of hostilities, or a mechanism was put in place to end slavery gradually. In the southern states, where economic well-being was contingent on the ownership of slaves, there probably would have been no ratification if any attempt to restrict slavery had been made.