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Basic Political Theory of the U.S. Constitution

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D Blaze

on 30 January 2014

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Transcript of Basic Political Theory of the U.S. Constitution

-Government cannot suspend writs of habeas corpus
must bring prisoners before a judge and inform the court why they are being held and what evidence is against them

-Government cannot pass bills of attainder
laws that single out a person or group as guilty and impose punishment without trial

-Government cannot pass ex post facto laws
laws that make an action a crime after the fact, even though it was legal when carried out
They establish:
(1) a judicial power to arbitrate disputes between members of the society,
(2) a set of laws that all the members of the society must obey, and
(3) an executive power to maintain and enforce the law.

This commonwealth is valid and just so long as these three powers serve the interests of all of those who have relinquished their rights to join it.

The U.S. Constitution
John Locke
Second Treatise on Government
Republic Democracy
Bill of Rights
Favored ratification of the Constitution

Favored a powerful federal government

Argued Bill of Rights was unnecessary

"The Federalist Papers"
Opposed ratification of the Constitution

Supported weak federal government, states' "sovereignty;" localized corruption considered less dangerous to liberty

Sought a Bill of Rights to formalize and protect rights of citizens, limits of government authority over individuals
Federalists promise addition of a Bill of Rights

Ratification succeeds in 1789, the new constitution produces a new government

James Madison drafts first ten amendments, later to be known as the Bill of Rights

George Washington unanimously elected president
A Government Designed to Protect the Liberty and Property of Citizens
Constitutional Civil Liberties
Federalist 1
Federalist 10
Brutus I
Cato V
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
FiFTH Amendment
SIXTH Amendment
SEVENTH Amendment
EIGHTH Amendment
NINTH Amendment
TENTH Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
- Establishment Clause
- Free Exercise Clause:
freedom of speech,
freedom of the press,
freedom of assembly;
right to petition
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.
Sovereign state
Right to keep and bear arms
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Protection from quartering of troops
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Protection from unreasonable search and seizure
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Due process
Double jeopardy
Eminent domain
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Trial by jury and rights of the accused
Confrontation Clause
Speedy trial
Public trial
Right to counsel
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Civil trial by jury
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Prohibition of excessive bail
Prohibition of cruel and unusual punishment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Protection of rights not specifically enumerated in the Constitution
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Powers of States and people
Introduces rationale in favor of new Constitution, derived from "reason," not politics

Demonstrates inadequacy of present government (under Articles of Confederation)

"The people" are in a unique position to answer the historic political question: "
whether societies of men are really capable or not of establishing good government from reflection and choice...
"General Introduction"
Subject: The Union as a Safeguard Against

Domestic Faction and Insurrection
- Constitution establishes a government capable of controlling the violence and damage caused by
: groups of people who gather together to protect and promote their special economic interests and political opinions

- Two ways to control a faction: remove its causes or control its effects. First is "a cure worse than the disease itself"

- In large republics, factions will be numerous, but weak, compared to majority faction in direct democracies

- Minority faction vs. majority faction
"The most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you..."

"In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves and oppressing them."

Recommends rejection of the proposed plan (the Constitution)
Criticizes the scheme of representation in Article One of the proposed Constitution:
"biennial elections for representatives are a departure from the safe democratic principle of annual ones..."
"...the number of representatives are too few... too few to resist the influence of corruption, and the temptation to treachery, against which all governments ought to take precautions..."
the Senate contains the seeds of aristocracy
Majority rule

"Direct democracy" implies that legislative responsibilities lie in citizenry (i.e. ancient Greek city-states)

Majority is not necessarily bound by a constitution limiting its authority/power
Representatives are elected by restricted group of citizens to make and enforce laws

Government authority is limited by a constitution

Consent of the governed is required for stability, legitimacy of government
Chapter 2
The "state of nature" is used to define political power.
A state of equality in which no one has power over another, and all are free to do as they please.
However, natural law exists even in the state of nature

Each individual in the state of nature has the power to execute "natural laws"
Universal, revealed through reason
The punishment must fit the crime

All people are in a state of nature until an agreement between them creates a political society
Chapter 9
Chapter 11
People acquire property in the state of nature, first by adding their labor to the land and the products of the land, then by bartering, and eventually developing the ability to gather large amounts of property together.

At this point, natural law is no longer an adequate protection for the property and liberty of individuals, so people enter into civil society to protect their property.

By entering into society people give up their freedom under natural law and their right to execute law.

Legislative power is most important function of government
Majority invests power in the legislature, all citizens are subjected to legislation

Limits to the power of the legislature include:
governance by fixed "promulgated established laws" that apply equally to everyone
these laws must be designed solely for the good of the people
legislation cannot raise taxes on the property of the people without the people's consent

Majority must maintain power to change legislative representatives, otherwise tyranny
Seperationists vs. Accomodationists

Employment Division, Department of Human Resources v. Smith
There need not be a "compelling state interest" to limit religious freedom
Restrictions on Sedition
Clear and present danger test
Imminent lawless action test
Restrictions on Other Types of Speech
Symbolic speech
Obscenity and pornography
Fighting words and offensive speech
Prior restraint
Exclusionary Rule
Miranda Rights
Gideon v. Wainwright (1963)
Right to Counsel
Protection Against Cruel & Unusual Punishment
Furman v. Georgia (1972)
McClesky v. Kemp (1987)
Baze v. Rees (2008)
The Right to Privacy
Reproductive rights
Griswold v. Connecticut (1965)
Roe v. Wade (1973)

Gay rights
Bowers v. Hardwick (1986)
Lawrence v. Texas (2003)

The right to die
Suspending treatment (e.g. Terri Schiavo case)
The terminally ill (e.g. the Oregon case)
Subsequent Amendments
11th (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law.
12th (1804): Changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president
13th (1865): Abolishes slavery and authorizes Congress to enforce abolition
14th (1868): Defines a set of guarantees for United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law; repeals the Three-fifths compromise; prohibits repudiation of the federal debt caused by the Civil War

15th (1870): Prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting
Reconstruction Amendments
16th Amendment (1913): Authorizes unapportioned federal taxes on income
17th Amendment (1913): Converts state election of senators to popular election
18th Amendment (1919): Prohibited the manufacturing, importing, and exporting of alcoholic beverages. Repealed by the Twenty-First Amendment
19th Amendment (1920): Prohibits the federal government and the states from forbidding any citizen to vote due to their sex
20th Amendment (1933): Changes details of congressional and presidential terms and of presidential succession
21st Amendment (1933): Repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages
22nd Amendment (1951): Limits president to two terms
23rd Amendment (1961): Grants presidential electors to the District of Columbia

24th Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials
25th Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president
26th Amendment (1971): Prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age
27th Amendment (1992): Limits congressional pay raises
Contemporary Civil Liberty Controversies
NSA wiretapping
habeus corpus for "enemy insurgents"
What else?
Civil RIghts Act of 1964
End of Jim Crow Laws

Desegregated schools in the South
Both men had come to hear the Senate debate on the Civil Rights Act of 1964. This was the only time the two men ever met; their meeting lasted only one minute.
Patrick Henry 6/5/1788
“How different from the sentiments of freemen, that a contemptible minority can prevent the good of the majority?” (205)

“If we admit this Consolidated Government it will be because we like a great splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things: When the American spirit was in its youth, the language of America was different: Liberty, Sir, was then the primary object… But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire” (207-8).

Many of Henry’s qualms are alleviated by the Bill of Rights
"Give all the power to the many,
they will oppress the few.

Give all power to the few
they will oppress the many."
Alexander Hamilton
Protection of property is government's fundamental purpose
“… it is necessary to whoever arranges to found a Republic and establish laws in it, to presuppose that all men are bad and that they will use their malignity of mind every time they have the opportunity…”


– 1517 –
Discourses on Livy

"...or whether they are forever destined to depend for their political constitutions on accident and force."
Of the Ends of Political Society and Government
Provided source of legitimacy for “natural” rights and just government without invoking claims of Divine intervention
Better fit for post-Enlightenment worldviews (i.e. Deism)

Offered popular justification for revolution against tyrants

Invented system of political equality where personal
are essential to social order
Trusted in individuals’ reasoning skills, unlike Hobbes

Separation of legislative and executive powers
Also, separation of church powers and state powers

Three points from the
First Treatise

Adam was NOT given absolute authority over the world and his children by God

Adam's heirs, therefore, did not have this authority

No one can claim such authority since it is impossible to identify Adam's heirs today.

State of Nature

Natural law

Natural rights

Political power

State of war

Social contract

Tacit consent

Key Terms
“— That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

“…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…”

Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—”

“— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed—”

Declaration of Independence
Heavily Influenced by John Locke
Full transcript