[NOISE] In part one of my lecture, I want to focus on a basic question, why have a Constitution? We're specifically here to talk about two major questions. What functions does the Constitution perform for society? And why achieve these goals through a Constitution? Let me start with just a little bit of historical background. After the Revolutionary War, it was necessary to create a new government. The Articles of Confederation were drafted among the states, previously the colonies. Those who drafted the Articles of Confederation were understandably, deeply distrustful of having a strong national government. After all, they had just successfully rebelled against the King of England. Above all, they didn't want a monarchy. But in addition to that, they didn't want to give the national government any more power than necessary. Some of this was based on a distrust of centralized power. But some of it also was these were the states deciding what to do. And the states wanted to be the primary unit for governance in the United States. The Articles of Confederation were created, there was a President under the Articles of Confederation. A good piece of trivia is, who was the first president of the United States? Now of course, the immediate answer comes to mind is George Washington. But it's not true. The first president under the Articles of Confederation was John Hanson. So, if ever you're on Jeopardy and the final Jeopardy answer for all the money is, who was the first President of the United States? The answer is John Hanson, the first president to serve under the Articles of Confederation. The Articles of Confederation gave Congress relatively limited power. It had no authority to pass laws regulating individual behavior. It had no authority to impose and collect taxes. It had no authority to regulate commerce among the states. The commercial interchange among the state governments. It was a very weak federal power. There was no federal judiciary, no federal courts under the Articles of Confederation. Quite predictably in hindsight, the Articles of the Confederation were a failure. The most important failure came in terms of the relationship of the states among themselves. The problem was that states began to develop trade wars. The states that were in port areas charged high taxes, high tariffs, to land-locked states. They retaliated, would only allow goods from port states in if those states paid a high tax, high tariff. The Constitutional Convention was called in 1787 to amend the Articles of Confederation. Most importantly, it was to give the Congress under the Articles of Confederation, the power to regulate commerce among the states. But when the individuals gathered in Philadelphia, In 1787 they decided not to impose amendments to the Articles of Confederation but to scrape the Articles of Confederation. The men gather in Philadelphia through a long and hot summer. Nothing during that summer of 1787 was easily agreed upon. In order to understand the United States Constitution, it's crucial to regard it as a compromise. In fact, everything in it was a compromise. The large states wanted to have representation in Congress, allocated on the basis of population. That, of course, would give those states with more population more representation in Congress. The smaller states wanted to make sure that every state had equal representation in Congress. After much discussion, a compromise was reached. Congress would have two separate bodies. One where representation was determined on the basis of population, the House of Representatives. And another where every state had equal representation, the United States Senate, where every state had two Senators. The only way to understand that, is to see that as a compromise, between the northern states, and the southern states. No issue was more important, or more divisive than that of slavery. It was clear that the southern states would never have ratified a constitution that did not protect the institution of slavery. On the other hand, many northerners regarded slavery as abhorrent, as repugnant, as immoral and unacceptable. One question that I always ask my students, undergraduate or graduate or law students when I'm teaching the Constitution, wass if they had been in Philadelphia in 1787 they were a delegate to the Constitutional Convention. Would they have ratified a document? Would they have agreed to a document that protected the institution of slavery? If an individual was a northerner opposed to slavery, believing slavery to be repugnant and immoral, should that person have agreed to a Constitution that protected the institution of slavery? Or should it have been better from the perspective of such a person to say the United States should split into two or three different countries? A northern country that prohibited slavery. A southern country that allowed slavery. How different American history had been if the nation had become two or three countries at the very outset. A compromise was reached. The compromise protected the institution of slavery. At least for a period of time. Now the word slavery nowhere explicitly appears in the United States Constitution, but it's quite clear that that's what the Constitution is talking about. So for example, Article I of the Constitution in Section 9 limits the powers of Congress. And it specifically says that Congress could not ban the importation of individuals for 20 years. In other words, Congress could not ban importing more slaves into the country for 20 years. Article V of the Constitution describes how it can be changed, the amendment process. Interestingly one of the provisions of the Constitution that Article V prohibits from amendment is that which said that Congress could not limit importing slaves for 20 years. There are other provisions of the Constitution that refer to slavery as well. Article IV of the Constitution has what's called the fugitive slave clause. It said that if a slave escaped from a slave state into a free state the person would have to be returned to his or her owner. The Supreme Court decades later said the Constitution never would have ratified by the south without the fugitive slave clause. Article I of the Constitution discussing the representation, an allocation of representatives in the House of Representatives said it was based on population. Based on the number of free persons and three-fifths of all others. In other words, in counting population for the purpose of determining representatives in the House of Representatives, slaves were counted as three-fifths of a person. And so this was the fundamental compromise. The Constitution protected the institution of slavery at least for a period of years. And indeed from 1787 when the Constitution was ratified until 1865 when the 13th Amendment was passed slavery was a part of the United States society. That's a period of 78 years in which the United States Constitution protected the institution of slavery. The Constitution was approved by those who drafted it on September 17th, of 1787. They applied their signatures to the document and then they went home to argue for it's ratification. The ratification of the Constitution was no means a sure thing, that the ratification of the Constitution was quite contested. There was group the anti-federalists that strongly opposed the ratification of the Constitution. They felt that it took too much power away from the states. They were afraid of creating a strong, centralized national government. Many objected to the ratification of the Constitution on the grounds that it didn't contain a Bill of Rights. As I'll talk about and review the Constitution and what it does, the Constitution is much more about the structure of the national government. And to a lesser extent, the relationship of the national government to the states than it is an enumeration of individual liberties. And so many objected to the Constitution on the grounds that it didn't specify a protection of individual rights. The Constitution was passed by a very small margin in states like New York and Virginia. But ultimately the Constitution did come to be ratified by three-fourths of the States. North Carolina did not ratify the Constitution until the first Presidential election was underway. And Rhode Island didn't ratify the Constitution until after George Washington was elected the first President under the United States Constitution. An interesting thing here, like so much of the Constitution, that raises the question do the ends justify the means? The Articles of Confederation said it could be changed only by the unanimous consent of the states, but Article VII of the United States Constitution said, it'd be ratified if three-quarters of the states agreed to it. Did that make the Constitution illegitimate until ultimately all of the states ratified it? Did the ends justify the means? The states did ratify the Constitution. A presidential election was held. George Washington was chosen as the first President of the United States. A Congress was elected. George Washington appointed the first Supreme Court justices. John Jay was the first Chief Justice of the United States. Congress in 1789 passed the Judiciary Act that created the lower federal courts and set up, as I'll talk about, the basis for the first major Supreme Court decision in American history, Marbury versus Madison. Why don't we pause here for a moment. And then I'll come back to continue part one, and address the questions I posed. What functions does the Constitution perform in society and why achieve these through the Constitution? Constitution. Constitution. Constitution. Constitution.
