I. Framing & Ratification
A. Inadequacy (?) of Articles of Confederation
1. Created a very weak national government and embodied a strong commitment that state governments retain sovereignty. It created disunion (dealing with Indians), interstate fighting (trade wars), and a major lack of money for central government.
2. States weren’t complying with A of C, and federal government could not do anything about it. Example: Georgia entered into a treaty with an Indian nation encroaching on a power granted the national government under the A of C. In addition, states were violating treaties made by the federal government.
3. States were stepping on each others’ toes. For example: Maryland afforded special privileges to Maryland boats at Maryland ports.
4. Lack of concern for areas of common interest. In other words, the national was in a post-war depression.
5. Nothing in the A of C compelled states to comply with federal orders etc.
6. Articles were not ratified by the people.
7. Laws in the several states were diverging causing problems. State debt relief legislation was worrying some people (Shay’s Rebellion) The thought was state debt relief legislation is bad (unjust), Congress should have negative power to swipe off the slate bad state laws and positive power to make good laws. Debtors/creditors are not evenly placed among the states. If Mass had given in to Shay’s Rebellion, it might have hurt Boston creditors and New York creditors… leading to further disunion.
8. A of C congress could not levy taxes and rather must rely on the kindness of the states.
B. Creation of the Constitution
1. Under A of C, the Annapolis Convention authorized the Philly Convention to draft something to help fix some of the problems of govt under A of C.
2. The A of C Congress would approve it, it would then be sent to the states, and changes would only be accepted if approved by all states.
3. What actually happened, is the Philly Convention created its own ratification process, bypassing the A of C Congress and going directly to the states with a requirement of only 9 of 13 states approval for ratification.
4. New gov’t came into existence in 1789 when 9th state ratified.
C. U.S. Constitution & Bill of Rights
1. New Constitution created a complete federal government (legislature, executive and judiciary), whereas A of C only had a legislature.
2. It made treaties part of the “law of the land.” Thus, the problem of enforcement of treaties was fixed by the Supremacy Clause and the creation of executive and judicial branches.
3. Gave the new Congress the power to levy taxes and thus support the new central governments’ need for money, without completely relying on the states.
Problems w/ Articles
1. States generally ignore Articles, and Articles of Congress (Requisitions, Statutes, Treaties)
o Articles II & III; Created Federal executive that can act directly on the citizens (don’t have to go through states.)
o Article I section 8 clause 1 – gives fed govt power to tax directly.
o Disability of states to enter into treaties; President/executive can enter into treaties, but Senate has to confirm (allows states to check federal power; retains state sov.).
o Article VI – Supremacy Clause –
2. Interstate “Snipping”
S. (both geographic and population) lends itself to a stable republican government, because it is hard to communicate and create coalitions. A large republican government works against extreme actions, because representation refines public views by passing them through a sieve.
2. Federalist No. 51 System of checks and balances in new central government created to prevent factionalism and self-interested representation (through bicameralism, national representation, system to pass laws difficult and indirect election). The intermingling of the three branches keeps one branch from gaining too much power. In addition, the separation of powers between the federal and state governments provides another check against abuse of power.
F. Attempts to limit the power of central government in Constitution
1. Federalism/10th Amendment – The Constitution enumerates all the rights that the federal government has and other rights not enumerated are reserved for the States. When exercising those powers it is expressly made Supreme, can wipe out State Constitutions or laws in so long as the Congress is exercising a power expressly given it.
2. Separation of Powers/Checks and Balances – discussed above in No. 51
3. Bill of Rights – States asked for a bill of rights to protect state rights, Madison gave them a Bill of Rights that protects individual rights (the rights that would not interfere with his federalist system of government).