Constitutional Loose Ends - (Chapters 1,3,4)

In forging a new government, the biggest concern of the colonial revolutionaries was how to limit its powers. They created the flawed Articles of Confederation.

Shays's Rebellion exposed the inability of Congress, under the Articles of Confederation to protect property and maintain order.

In response to these glaring weaknesses a Constitutional Convention was called in Philadelphia in 1787 to revise and amend the Articles of Confederation. The driving force at the convention was James Madison ("the father of the Constitution") although he ended up on the losing side of most of the debates. Other leaders such as Thomas Jefferson, Thomas Paine, Patrick Henry, John Adams and John Hancock opposed the idea of creating a stronger government and did not attend.

Based upon the writings of Charles Montesquieu, James Madison in Federalist #48, Alexander Hamilton and John Jay, the concepts of separation of powers and checks and balances became a central feature of the new government. In assigning the powers of government, the Constitution lists the specific powers given to the national government (and the powers denied to the states) and leaves all other powers to the states. This division of powers, called federalism, enables the different branches and levels of government to act as a check on the power of the others. In fact there is not a strict division of power among the levels of government. Their powers often overlap and duplicate each other (ex. the power of Congress to create new federal courts and specify the number of judges who will sit on them). This creates a diversity of public policy throughout the United States.

According to historian Charles Beard in his An Economic Interpretation of the Constitution (1913) the delegates to the convention were wealthy men who cared mainly about the financial interests of their class. Their primary concern was the protection of the property owner and property became the major criteria for the privilege of voting in each state. It is no coincidence that, as originally ratified, the Constitution included provisions to specifically increase the economic powers of the federal government.

These property owners also strictly prohibited individual states from duplicating the powers of the federal government that would have an impact on the economy (ex. the power to coin money, regulate interstate and foreign commerce)

One issue which was hardly discussed by the delegates to the convention (and the signers of the Declaration of Independence) was slavery.

The principle of limited government is the extension of the philosophy of the Enlightenment thinkers -- that government is created by the consent of the governed.

Powers which are specifically assigned to Congress by the Constitution are called enumerated powers.

Powers exercised by Congress which are not spelled out in the Constitution are called implied powers. The constitutional basis for Congress's implied powers is the necessary and proper (elastic) clause of the Constitution which states "the Congress shall have power... to make all laws which shall be necessary and proper for carrying into execution the forgoing powers ...." The practical effect of this clause has been to allow the national government to to extend its powers far beyond those enumerated in the Constitution. Interpretations of this clause have also been central to attempts to define the nature of federalism. Furthermore, in the case of McCulloch v. Maryland (1819), the Supreme Court overruled the powers of states to tax the federal government and upheld the principle that Congress has the power to make whatever laws are necessary to carry out its constitutional duties. This ruling also strengthened the power of the national government.Congress has used the elastic clause ever since to expand the size of government, pass civil rights legislation, regulate interstate commerce, pass a war powers act and declare war. The elastic clause is perhaps the greatest instrument of change Congress has at its disposal. In spite of the powers given to Congress the framers of the Constitution tried to create a legislature that would be "cautious and deliberate".

The process required to amend the Constitution involves a two-thirds vote in favor of the proposed amendment in both houses of Congress, followed by ratification by three-fourths of the state legislatures.

The Constitution requires the Executive branch (President) to "take care that the laws be faithfully executed".

The article of the Constitution establishing the Supreme Court was purposely left vague because the framers were unable to agree on the details of a national judiciary. The Supreme Court first declared that the courts have the power to overturn laws and government acts that conflict with the Constitution in the case of Marbury v. Madison (1803). This is called the power of judicial review.

Opponents of the Constitution, called Anti-federalists, attacked the Constitution on the grounds that the national government it created was too strong. They demanded the inclusion of a Bill of Rights in order to curb the power of the national government.

The main argument against the need for a Bill of Rights was that the Constitution established a government of limited powers, and, since the government was not given the power to regulate individual liberties, no bill of rights was necessary.

Supporters of the Constitution, called Federalists, argued for its ratification in a series of articles called the Federalist Papers. Two of these articles, Federalist #10 and Federalist #51, addressed the issue of how to avoid the government falling under the dominance of any one faction (interest group or party).

The Constitution is written in language that is deliberately vague as a result of compromise and to allow for flexibility.



supremacy clause

natural rights


majoritarian (popular) democracy


layer cake (dual) federalism

marble cake (cooperative) federalism


categorical grant

block grant

unfunded mandates

equality of opportunity

equality of outcome





Social contract theory (Locke)

Virginia Plan

New Jersey Plan

Great Compromise