Week #7: The Constitution and Bill of Rights

The Constitution of the United States (National Archives)

Announcements

Midterm Exam next Thursday, 10/08
Discussion Post #5 due Friday, 10/02, 11:07pm

Plan for the Day

Heads Up on Class Fun!
Madison, James. The Constitution of the United States
federalism, preemption, separation of powers, judicial review, and checks & balances
The Bill of Rights (notes)
Democracy/Liberty/Freedom/ETC. quotation: Getting to the actual source
- Below is the “typical” excerpt of today’s quotation from James Madison: “The advancement and diffusion of knowledge…is the only guardian of true liberty.”
  –letter to George Thomson, 30 June 1825, Letters and other Writings of James Madison (1865) vol. 3 [c.f. Oxford Reference]
- The full excerpt is this: “Your old friend, Mr. Jefferson, still lives, and will close his illustrious career by bequeathing to his Country a magnificent Institute for the advancement and diffusion of knowledge; which is the only Guardian of true liberty, the great cause to which his life has been devoted.”
  –Madison, James. Letter to George Thomson. 30 June 1825.” Letters and other Writings of James Madison: Fourth President of the United States. vol. 3, R. Worthington, 1884, pp. 490-492. (1865) vol. 3
- The “Institute” is the University of Virginia
- What’s lost in the full quotation?

Abridged Excerpt	Full Excerpt
“The advancement and diffusion of knowledge…is the only guardian of true liberty.”	“Your old friend, Mr. Jefferson, still lives, and will close his illustrious career by bequeathing to his Country a magnificent Institute for the advancement and diffusion of knowledge; which is the only Guardian of true liberty, the great cause to which his life has been devoted.”

The Rhetorical Approach

It’s time to reiterate how we’re approaching this document. This rhetorical approach looks for the messages of the text as they relate to broader American ideals, themes, values, etc.–ideology or, more specifically, hegemony. This is NOT the historical, political science, and Constitutional scholarship approaches we would expect in a legal studies context.

Several of you might aspire to practice law, so you’ll dive deeper into the legal rulings based on constitutional interpretations over the Nation’s history. If you want a preview into the law, I recommend our Legal Studies Minor. Also, if you plan to be a (good) attorney or judge, I highly recommend honing your debate skills, and I have just the activity for you: The Charlotte Debate Team! The last two times I interacted with lawyers, they shut down the conversation because they weren’t able to deny the merits of my arguments. This level of rhetorical prowess can be taught, and it’s been practiced for thousands of years, and it is AI-proof.

Map of the 13 Original Colonies

Take a look at the shape of Colonial and “post-Colonial” America

Articles I-VI of the Constitution

We’ll cover the Bill of Rights (Amendments I-X) and select Amendments over the next two classes. For now, let’s focus on the Articles to locate any values they seem to convey to readers. Also, specifically consider the 1808 sunset clauses.

Preamble

Consider the rhetorical strategies of the following line in relation to our other texts:

“…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…”

Article I: The Legislature

Notice that it starts by defining the Legislative Branch
Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…”
- All the People? Consider the idea of suffrage, being franchised to vote.
- What about Senators?
Decennial census
Establish a Congressional journal…the Congressional Record
- Jump to Article I, sec. 10
Impeachment power lies with the House of Representatives; Senate holds Impeachment trials
Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except [in choosing] Senators.”
- Let’s pause on manner. Which definition fits here?
Section 6: Senators or Representatives cannot be arrested going to and from the Capitol.
Section 7: “All Bills for raising Revenue shall originate in the House of Representatives…”
- Passing laws
- Presidential vetoes
Section 8: Taxes, Tariffs, Defense, and General Welfare
- “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
- Militias, bases, and barracks
Section 9: “The Migration or Importation of such Persons…shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight” (1808–about 20 years after drafting the Constitution)
- First clause: “The Migration or Importation…exceeding ten dollars for each Person.”
- Fourth clause: “No Capitation, or other direct, Tax…directed to be taken.”
  - Article V has language “sunsetting” these two clauses
  - What can be said about this language and what was going on among the drafters of the Constitution?
  - Special vocabulary: (more information from The Annenberg Guide to the United States Constitution)
    - Habeas Corpus: law enforcement must explain why they “have a body,” the prisoner; therefore, the writ of habeas corpus means law enforcement must explain to the courts why someone is being held.
    - Bill of Attainder: declaring someone or group guilty without a trial.
    - Ex post facto Law: passing a law that condemns people who did things in the past that are now illegal. *Compare to the post hoc ergo propter hoc logical fallacy **Nothing to do with your “ex” and the legal system…
  - “No Title of Nobility shall be granted by the United States…”
  - The Foreign Emoluments Clause–no gifts
Section 10: Preserving the Union
- “No State shall enter into any Treaty, Alliance, or Confederation…”
- Letters of Marque and Reprisal: authorization to attack vessels at sea
  - Think of it as a “hall pass” that designates you a privateer; without it, you’re a pirate!
- “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War…”

Article II: The Executive

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”
- For the first half of my life, winning the Electoral College but losing the Popular Vote was mainly a theoretical discussion of a past “issue”. During the second half of my life, it’s been a not uncommon result.
- 1824, 1876, 1888, 2000, and 2016
President can’t get a raise during the term
“Oath of Affirmation:–‘I do solemnly swear (or affirm)’…”
Section 2: Appointments and Pardons
Section 4: “…Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
- The Framers specifically left out “maladministration” (which some State constitutions had) as an Impeachable offense (Constitution Annotated).
- Why?
- “The Framers were determined to limit the grounds on which an officer could be impeached in order to safeguard another constitutional principle: the separation of powers” (Neil J. Kinkopf)

Article III: The Judiciary

Section 1: Supreme Court
Section 2: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury…”
Section 3: Penalty for Treason
- “‘Corruption of blood’ is a reference to English common law, which prohibited family members from—among other things—receiving or inheriting property from a person convicted of treason. Under the Constitution, that punishment may not extend beyond the life of the person convicted of treason” (Paul T. Crane).

Article IV: The States

Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
Section 2: Must give citizens of other States fundamental rights…but you can make them pay more…
Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion…”

Article V: The Amendments

Two-thirds and three-fourths
“…Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight [1808] shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;”
“…and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
- They wanted to balance States’ power

Article VI: Oaths and Stuff

Superseding the Articles of Confederation (John Dickinson, chief writer)
“…bound by Oath or Affirmation…”
“…but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Article VII: Ratification

“…by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven [9/17/1787] and of the Independance of the United States of America the Twelfth…”

Now, States need to get to ratifying, so they can have “bragging rights” on their license plates and coins!

Works Cited

Crane, Paul T. “Common Interpretation.” The National Constitution Center, https://constitutioncenter.org/the-constitution/articles/article-iiI/clauses/39.

Kinkopf, Neil J. “The Scope of the Impeachment Power: What are ‘High Crimes and Misdemeanors’?.” The National Constitution Center, https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/349.