• Take the quiz at http://users.humboldt.edu/ogayle/hist110/ConstitutionQuiz.html
• Compare your answers with those of other Americans polled in 2011at http://users.humboldt.edu/ogayle/hist110/ConstitutionQuizAnswers.html

If you didn't do too well on this quiz, you are joined by way too many other Americans. Polls conducted in the past decade do not bode well for American understanding of our nation's political origins or documents. So, as we begin our discussion of the Constitution, please keep in mind that most Americans know very little about our Constitution. This, then, becomes our responsibility as educators - to help our students understand the Constitution, as well as the relevance and importance of the Constitution to their 21st Century lives.

Discussion Goals:

1. To understand the origins of the Constitution.
2. To examine "The Preamble" to the Constitution
3. To understand the controversies and compromises that accompanied the creation of the governmental structures under the Constitution.

For almost 4 months, the delegates to the Constitutional Convention worked 6 days a week, five hours a day, from May 25 to September 17 in miserable summer heat and humidity - not to amend the Articles, as had been the original goal of the Convention - but to create an entirely new framework for government that has lasted to this day and was like nothing ever seen before. Indeed, it was what one historian has called "the most remarkable example of sustained intellectual discourse in American history."

• Legislative.  A bicameral Congress had the power to make the laws that governed the U.S.  Congress consisted of the House of Representatives and the Senate.
• Executive.  A President presided over the Executive Branch.
• Judicial.  A Supreme Court was vested with the judicial power of the nation.

The adoption of the Constitution represented a great power shift:

Under the Articles, the central government was decentralized and real power remained with the state governments.  The central government consisted of a unicameral legislature (Congress) that had few powers.

Under the Constitution, the central government was centralized  and real power was vested in its three independent branches.  The central government consisted of the legislative  (a bicameral Congress), executive, and judicial branches that shared many powers.  All power not specifically vested in the central government under the Constitution was left to the state governments.

As a whole, the Constitution establishes a system of separation of powers through the creation of these three branches, each of which were designed to check and balance each other. For instance, one of the most important functions of the federal government is to make laws. But the process is separated among the powers: Article I gives Congress the power to make laws; Article II gives the executive branch the power either veto or to enforce and laws; and Article III sets up the judicial branch which will eventually have the power to interpret the laws.

Goal #2: To Examine "The Preamble" to the Constitution

The following sentence comprises the beginning - the preamble - to the Constitution:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Methods Discussion: We begin today with a Think/Pair/Share.

• Think on your own for 5 minutes about the following questions related to the Preamble. Just think about it - do not write anything down.
  • Who are "we the people?"
  • What did the Founders mean when they said they wanted to establish "a more perfect union?"
  • The stated goals of the Founders were to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." In your own words, what did they mean?
• Turn to your partner and spend 5 minutes to discuss the above three questions and come to a common agreement about what they mean.
• Select one of you to share your thoughts with the class.
• Be sure to keep your "Think/Pair/Share" methods activity. It will go into your Portfolio.

Discussion: What are the 1-2 most important things we have learned about the Constitution so far just by reading the Preamble?

Because controvery and debate characterized the Revolutionary Era, and because the debate involved two sharply divided sides, it is clear that compromise was required in order to create a new government. Following are some of the most important compromises made during these debates.

1. Congressional Representation.  The controversy generally was over whether representatives to Congress would be based on proportional - or population - basis or on an equal basis.

• If they used proportional representation, states with large populations would have a great deal of power while states with small populations would have less representation.  For instance, Virginia and Pennsylvania would have one-third of the nation's political power, while Delaware would be entitled to one-nineteenth.
  • Slave-owning states could have more power than non-slave-owning states.
  • Eastern states with fixed borders could be stuck with smaller populations while those of the west with an untapped continent could host potentially enormous populations.
• If they used equal representation, each state, regardless of size, would have the same number of representatives.  Thus, seven states with only 25% of the total population could have the majority control over both houses.

The compromise - a bicameral Congress.

• Senate was based upon equal representation
• House of Representatives was based upon proportional representation.

2. Slavery. The Constitutional debate over slavery included two extreme arguments:

• New England and most Middle Atlantic delegates argued that slavery
  • was inherently incompatible with the values of the American Revolution,
  • retarded economic development in the south, and
  • should be abolished in the territories. 
  • Some argued for its abolition in the Constitution while others argued for the abolition of the slave trade.
• The Southerners argued that they should
  • have open-ended access to African slaves and open access to slave labor in the territories,
  • include a provision guaranteeing the property rights of slave owners in the Constitution, and
  • although slaves were property, they should count in terms of representation in the House. 
  • Indeed, all southern states had  a distinct disadvantage:, at  least half of their population were slaves who, as property, could not count for voting  purposes.

When the Constitution was completed, slavery was sanctioned throughout the document. Five provisions dealt directly with slavery:

• Art. I, sec. 2.3. The three-fifths clause provided for counting three-fifths of all slaves for purposes of representation in Congress.
• Art. I, sec. 9.1. Congress was prohibited from banning the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Congress was thus prohibited from ending the African slave trade before 1808 but it did not require Congress to ban the trade after that date. Congress could do so if it could agree to do so.
• Art. IV, sec. 2.3. The fugitive slave clause prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."
• Art. V. This article prohibited any amendment of the slave importation clauses before 1808.

These five provisions gave the South a strong claim to special treatment for slave owners. But there are also several other clauses of the Constitution that indirectly protected slavery - and in so doing, made slavery a national rather than a regional issue.

• Art. I, sec. 8.15. The domestic insurrections clause empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions.
• Art. I, sec. 9.5, and Art. I, sec. 10.2. These clauses prohibited federal or state taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton. The clauses, conversely, allowed tariffs on imports to the U.S.
• Art. II, sec. 1.2. This clause provided for the indirect election of the President through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the President - that is, it gave slave states more electoral votes than would have been assigned without the three-fifths clause.
• Art. IV, sec. 4. In the domestic violence provision of the guarantee clause, the United State government promised to protect states from "domestic Violence," including slave rebellions.
• Art. V. By requiring a three-fourths majority of the states to ratify any amendment to the Constitution, this article ensured that the slaveholding states would have a perpetual veto over any constitutional changes.

So, how were the above provisions of the Constitution examples of compromise:

• The words "slavery," "slaves," or "Negroes" were omitted from the final draft of the Constitution. The word "slavery" only appears in one place in the Constitution - in the 13th Amendment which abolishes slavery. In the body of the Constitution, slaves are referred to as "such persons," "other persons," or as a "person held to Service or Labour."
• Each slave was counted as three-fifths of a person For purposes of representation in the House of Representatives.
• Tariffs - Northern interests wanted the government to be able to impose tariffs on goods in order to protect against foreign competition. However, the Southern states feared that tariffs on their goods would hurt the trade upon which they heavily relied. The compromise was that tariffs would only be allowed on imports from foreign countries and not exports from the US.
• The New England states agreed to extend the slave trade for 20 years, allowing Congress to revisit the topic in 1808; in return, the Deep South agreed to a majority rather than a two-thirds vote on matters regarding federal regulation of commerce.

The "bottom line" was that neither side got what it wanted.

• No provisions were included for placing slavery on a road to extinction and no guarantees were included for making slavery a permanent and protected institution.
• There was somewhat of a Southern victory - when the Southern states ratified the Constitution, they did so with the implicit and broadly-shared understanding that the federal government could and would do nothing to interfere with the existence of slavery in the South.  Many states further felt that if the federal government ever failed to honor this understanding, they had the right to leave the union.

3. Impeachment. The question of removing the President or another federal official from office was hotly debated. Which branch should be responsible?

The Compromise - Both houses of the Legislature Branch shared the responsibility for impeachment. The Executive Branch also has some authority in regards to pardons.

• The House of Representatives has the sole power to accuse or impeach, a federal official (majority vote required). Article I, Section 2, Paragraph 5
• The Senate has the sole power to try the impeached official and determine guilt or innocence, as well as the power to determine the punishment of a convicted official (two-thirds vote required). Article I, Section 3, Paragraphs 6 and 7
  • The proceeding is not a criminal trial so different rules apply. The House appoints "managers" who act as prosecutors and the accused may be represented by counsel.
  • Senators must take a special oath for an impeachment trial, but they technically are not jurors. They are no allowed to speak during the trial, but they can present written questions for witnesses.
  • Once the evidence is presented, the senators deliberate in closed session and vote in open session.
  • If the Senate convicts an official, they are automatically removed from office. In a separate proceeding, the Senate can also vote to disqualify that official from every holding another federal office.
  • An impeached official may still be prosecuted under any criminal law that applies - and this action does not violate the prohibition in the 5th amendment of double jeopardy because impeachment is not a criminal proceeding.
  • As of 2000, the Houses had impeached 16 federal officials - two of whom were presidents - but only seven of those - all of whom were federal judges - were convicted by the Senate. Only two of those judges were disqualified from holding future office and one impeached and convicted federal judge - Alcee Hastings - was elected to Congress in 1992.
• Members of Congress cannot be impeached, but they can be punished, censured, or removed from office by 2/3 vote. Article II, Section 5. In 1969, the U.S. Supreme Court ruled that expulsion does not have to be based on a criminal offense, but rather the offense must be "inconsistent with the trust and duty of a member."
• The President may not pardon an impeached official. (Article II, Section 4),
  • Executive branch officials and federal judges can be impeached for 'treason, bribery, or other high crimes and misdemeanors." While this phrase has been variously interpreted, in general no official has been impeached for an offense that was not indictable in a civilian court. In the 1993 case Nixon v. United States (506, U.S. 224), the U.S. Supreme Court ruled that the impeachment process is not subject to judicial review and cannot be appealed to the courts.

4. The Electoral College. Some of the Founders felt that the president should be elected by popular vote; others believed that in a nation as large as the U.S., the citizens would not be able to make an informed choice for president.

The compromise.  The electoral college which clearly vests the power to select the president in the states, not the people.

• Each state appoints electors equal to the number of its senators and representatives.
• No member of Congress or federal office holder is allowed to serve as an elector.
• Each state chooses how to select their electors.  Over time, every state enacted a law that allows citizens to vote for presidential electors.  Thus, when we cast a vote, we are voting for presidential electors – not the president.
• Electors meet in each state at a time specified by Congress – the first Monday after the second Wednesday in December – and cast their vote for president in their state delegations.
• Once the popular election returns are counted, the electors with the majority of the state’s popular vote are entitled to cast all of the state’s electoral votes.  In this “winner takes all” situation, a candidate who receives two votes less than the opponent would not receive any electoral votes.  Thus, it is possible for a president to be elected by a minority of the popular vote and a majority of the electoral vote. There have been three times in our history when a president has been elected with a minority of the popular vote – in 1876, Hayes won over Tilden; in 1988, Harrison won over Cleveland; and in 2000, Bush won over Gore.

5. Basic Freedoms. There were no inclusions of basic freedoms in the Constitution, other than two: the right of habeas corpus and the right to a trial by jury. Many of the Founders argued there was no need for "enumerated rights" - a list of rights guaranteed to all. They continued that basic rights were understood and there was no need to list them all. But representatives from the southern states insisted the inclusion of a list of rights.

The Compromise. The Bill of Rights - the topic of our next meeting.