Slide 1What is a Constitution?Declaration of Independence (1776)Articles of Confederation The First American “Constitution”Failures of the ArticlesThe Constitutional Convention The Summer of 1787The Constitutional Convention The Summer of 1787The “Three Great Silences of the Constitution”The Bill of RightsThe Bottom Line – What is the net effect of the Constitution?The Bottom Line – What is the net effect of the Constitution?The Bottom Line – What is the net effect of the Constitution?THE CONSTITUTIONThe Tangible Reflection of the American ConsensusWHAT IS A CONSTITUTION?Fundamental lawLaws determining the fundamental political principles of a government Procedures for adjudicating disputesStructure of GovernmentPowers and Authorities of Government (What it Can Do)Limits of Governmental Power (What it Can’t Do)A Constitution is often, but not always, a written documentGreat Britain still does not have a written ConstitutionA successful Constitution is one that encapsulates societal consensusThis is often termed a “social contract”DECLARATION OF INDEPENDENCE (1776)Copied from Locke’s Second TreatiseBasically a set of objections to British RuleAn important historical document but predates the lawThe reason why this is important to say is that the Declaration has no weight in legal proceedings – it is NOT the lawARTICLES OF CONFEDERATIONTHE FIRST AMERICAN “CONSTITUTION”Basically a treaty between sovereign statesContained no provisions for unified decision making in the absence of consensusStructurally No Federal CourtNo Executive BranchFAILURES OF THE ARTICLESA threat to national securityNo provisions for funding a national government (no independent taxing authority)Bad for BusinessNo way to coordinate interstate commerceNo national currencyTHE CONSTITUTIONAL CONVENTIONTHE SUMMER OF 1787To amend or supplant the Articles?The decision made to supplantThe Convention was held under a gag rule with no minutes takenThe Structure of Government – Shared and Divided GovernmentThe Importance of Democratic GovernanceIn a democracy citizens are free as they can be because the rules that exist are rules they place upon themselvesTHE CONSTITUTIONAL CONVENTIONTHE SUMMER OF 1787But because they didn’t trust democracy, the Framers divided up the power of governmentChecks and Balances – Where powers are sharedThe Veto, the Treaty Power, The Presentment ClauseReliance on an architectural principle – the Separation of Powers – Where powers are separatedA prime example of Enlightenment thinking incorporating the philosophy of Locke, Montesquieu, and JeffersonDifferent constituencies, age requirements, terms, election cycles – and the physical separation of the institutionsTHE “THREE GREAT SILENCES OF THE CONSTITUTION”What do you do when during a negotiation you have a profound disagreement?The Three Great Silences….SlaveryThe relationship between the state and federal governmentThe relationship between Congress and the PresidentIn some sense the Civil War was fought to resolve issues related to just these unresolved problems in the ConstitutionTHE BILL OF RIGHTSWhy are the Bill of Rights in Amendment form?The pros and cons of a Bill of RightsThe consequences of a Bill of RightsThe elevation of the power of the Supreme CourtTHE BOTTOM LINE – WHAT IS THE NET EFFECT OF THE CONSTITUTION?The Constitution is both a conservative and liberal documentThe Framers were men of their time and they were profoundly influenced by the dominant Conservative political philosophyThus the original document is schizophrenic – It is both democratic and undemocratic at the same timeOver time much of what makes the document conservative has been lostNative American citizenship, Women’s Rights, Voting Rights for allThe Constitution as it has evolved over time is both vibrant and irrelevantIt is both a structural design and a dictate of mandatesThe Framers set out to create an inefficient government…..and they were enormously successfulTHE BOTTOM LINE – WHAT IS THE NET EFFECT OF THE CONSTITUTION?So let’s circle back around and fit this into our definition of politics (Who gets what according to the rules of the game.)“Rules of the Game”Rules can be fair but they can’t be neutral – all rules discriminateThink of three different games: basketball, school and marriageWho wins and who loses?What makes the rules fair?THE BOTTOM LINE – WHAT IS THE NET EFFECT OF THE CONSTITUTION?So who wins and loses under our constitutional system?What makes the rules (and, thus, the way they discriminate) fair?Let’s take a shot at these questions:What would be fair discrimination for a modern conservative?What would be fair discrimination for a modern