He explains the aim of the federalist papers. Good evening. Welcome to class number two of the study of the u. S. Constitution. Last week we looked at the history that led to the drafting of the constitution. I want to recap that quickly tonight as we start because as i tried to communicate last week, the drafting of our constitution, the history of its formation is extraordinary to say the least. It is remarkable moment in all of world history. We are here at 233 years later and our constitution is in the news daily, being referred to as we almost speak here tonight, again and again. In reference to one particular aspect of the constitution. But again, it is alive and well. To think about the fact this came together from a period of midmay until midseptember of 1787 is remarkable. We recall that we said the revolutionary war, and a lot of folks are not clear on the sequencing. It is important to note conflict began in lexington and concord and massachusetts in 1774. These very independent colonies, british colonies that operated with their own governments and their own leadership and so forth, suddenly had to come together and form a military alliance. It was not easy for them to do that. They had a lot of hesitation and concern about what it meant to be together. But the enemy was the justification for their alliance. They formed that alliance of the First Continental Congress and in 1775, they come together. By july 1776 they make a declaration. We see a nation starting to be born at least for purposes of declaring independence and working together for a common military purpose. A year and a half after that, they form the articles of confederation. The articles of confederation become the next step in an effort to have some type of connection between these colonies. We looked last week at the articles of confederation and we noted it referred to, the colonies referred to themselves as a firm league of friendship, an interesting way to describe this new United States, almost like nato or some type of International Treaty of countries, individual countries coming together. It took 3. 5 years for those articles to be ratified and to become effective. So think about that. The necessity to form a nation was clear. They put together articles that are very loose, dont require much, very minimal in terms of government structure and yet it took 3. 5 years for everybody to get on board and agree. And we see of course severe limitations, significant weaknesses to the articles of confederation. By the way, as those articles of confederation were being considered, shortly after they were considered, they were approved by a sufficient or by other states, march of 1781, the british surrendered at yorktown, so military conflict was over by the end of night, of 1781. May 1781. There is sort of peace although the british army is still present in new york and it took a while for them to actually leave the new union. During this time, the articles are in operation and the limitations are very clear. During that time, we see that the articles of confederation, they did not provide for an executive branch. There was no independent judiciary. There was a one body, one house congress. Everyone had to be in agreement to do anything. It gave the states tremendous power, virtually all power. As a result, lots of things were going on in the states that were really unsettling with regard to recognition of Property Rights and doing justice. This was something madison was especially concerned about. The 11 years between the articles of confederation and finally 1787 and the Constitutional Convention is a fascinating period. As i was preparing, i pulled from my shelf a book called the confederation and the constitution. This is a book that i had to buy for my Early American History course in 1977, i think. Very long time ago. But i keep all of my books. I was a history major. For those of you who like books, maybe when you are in your 60s, you will have some College Books around. I had a lot of mine. Anyway, it was useful. It is a fascinating time in which the country is trying to come together and be a nation. Well, it was not working and as i talked about last week, Alexander Hamilton was especially concerned. So there was a meeting of five states in annapolis in 1786. And at that meeting, hamilton was pushing for the congress to call a special convention to presumably modify the articles of confederation. And he was successful. And in february of 1787, the congress did call for a Constitutional Convention. And this Constitutional Convention was instructed to do what was necessary to fix the problems of the articles of confederation. As we said last week, something much different occurred. In the book i recommended to you, the paulson book, they referred to it, father and son, referred to it as basically a coup detat, that the framers came together and formed a document that was completely new. They threw out the articles, formed the new constitution, something beyond their mandate, and were able to get that ratified. So that itself was a major milestone in american history. So hamilton was the instigator who was able to get this convention called and to encourage it to be bold and take action. George washington was thought to chair the proceedings. He did not say much, but he encouraged them to be bold and do what is necessary. Madison was the architect, the one who did the most work, who came prepared to really, brought a constitution basically with him and was prepared to lead everyone through it. Didnt miss anything in the proceedings and took extensive notes. It is his notes we can rely on the most to know what happened during that convention. Wilson from pennsylvania was the draftsman who helped, worked with madison to get the provisions right and then Gouverneur Morris was the wordsmith who wrote some of the words that have become famous and the preamble in particular. When madison came prepared, he came with the virginia plan. The virginia plan called for what we think of today in the structure of the constitution, the separation of powers and federalism. That is tonights focus. The one weakness was that it called for representation based on population for the house and senate. There was a Bicameral Legislature and it was going to be an improvement over the articles of confederation. That was not unprecedented. That was existing in parliament but the senate would be elected based on a population. That was objected to by the smaller states of course, and the great compromise came forward, which was something from Roger Sherman of connecticut, sometimes called the connecticut compromise. It was we like what you have done, mr. Madison. It is a great framework, but this will not work. We will go with something different. Every state will get to senators and will have representatives, populationbased representative. Elections for the house. And so that is how they worked that out. There were many other debates over lots of other important things. We will talk about those tonight but by september 17, they were able to sign that constitution. Nearly everyone, three famous participants, ended up not signing. But they came together to sign the constitution. And then the ratification process began. At this point, you have to appreciate how controversial the document was. It had strayed from the mandate as to amending the articles of confederation. The states, so independentminded, were very concerned about what had been created. There were objections throughout the colonies. As the various states held the ratification conventions, and that is the way it was set up, they would have special conventions for purposes of ratification, not just a vote in their state legislatures, but in those conventions, there were really fierce debates about whether or not this was the right direction. And the concerns were over the fact that there was a National Government being created that would have too much power and the other was there was not enough protection for rights, that there were not enough safeguards in place. Between the two things, the centralization of power and the lack of guaranteed rights, there was a lot of difficulty getting the states on board. One great description that is part of a wonderful introduction to my copy of the federalist papers, going to talk about them in just a moment, but the columbia historian who wrote the introduction to the publication of the federalist, he describes it this way. We forget how controversial the constitution was in a moment of its birth. It was drafted in secrecy by men who knew that they had acted beyond the mandate given to them. Sent as state delegates to philadelphia to discuss problems in the new union, they had been told to make any adjustments within the articles of confederation as the official compact of union. The articles had been drafted in the antiauthoritarian moment and spirit of 1776. It was a companion document to the declaration of independence and it left autonomy in the hands of the states. Nonetheless, five years would pass before the apprehensive states approved even those, this close coalition. They did so in 1781 after many revisions by leaders who feared centralized authority. The framers of the constitution basically ignored these fears. Instead of tinkering with the arrangement, they jumped the articles altogether and wrote out their own document of principles. When they were done, they had substituted a much stronger ideal of union than a suspicious compromisers of the original confederation had contemplated or would have allowed. You see what was in front of those who supported the new constitution in order to be able to get support throughout the new country. And so, that brings us to the federalist papers. About a month after signing the constitution, after september 17, 1787, the first one of these oped pieces as we think of them today, they were essays, appeared in a new york publication, drafted by Alexander Hamilton. He wrote the first paper in defense of the new constitution. Hamilton, madison, and john jay, who was not even at the Constitutional Convention, did not sign the constitution, the three of them teamed up to write these federalist papers. There were 85 in total. And they were published from october all the way through to august of 1788. At one point before they were even all done, they were collected in a publication. And that is when they were called the federalist. Today we are to them as the we refer to them as the federalist papers. Jay only wrote five of them. He became ill at a certain point. Hamilton and madison split the job. Hamilton did more than madison. They used a pen name for them. The pen name was publius. That was not unusual to have a pen name. It was a statesmanlike educated persons way of communicating. It was known who were the advocates for the new document. And jefferson, who was not at the convention, didnt sign the constitution, when he got a chance to read the federalist papers, he said, they are the best commentary on the principles of government, which ever was written. Let me read a few lines of the first federalist paper. By Alexander Hamilton. This is how the federalist papers begin. After full experience of the insufficiency of the existing federal government, you are invited to deliberate upon a new constitution for the United States of america. The subject speaks of its own importance, comprehending in its consequences nothing less than the existence of the union, the safety of the welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country to decide by their conduct and example the important question whether the societies of man is capable of establishing Good Government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. That is a taste of the brilliance of the federalist papers. And so those papers came along side the ratification process and helped to address every argument and issue being thrown up against the new constitution. So lets jump into the new constitution and see some things that for many of you are very familiar and for those of you who took the class so you could understand it, i will not make assumptions. I want to make sure we are on the same page. Lets look at the structure. It is brilliantly simple, isnt it . You have the preamble. The preamble and its eloquence, reflecting the language of the declaration of independence with regard to the will of the people. To express their own form of government. And so we have the legislative branch, article one. The executive branch, article two. The judiciary, article three, you often hear of article three judges, meaning judge appointed according to this article of the constitution. Article five, how the constitution is amended. Article six, dealing with National Debts and article seven, how to ratify the constitution and then the bill of rights. And there are 27 amendments to the constitution in the bill of rights. Now, the bill of rights in particular is referred to the first 10 amendments because that is the bill that was introduced by madison. And so, to be ethically precise, you have the bill of rights in the first 10 amendments that were ratified and then you have had additional amendments since then. There was quite a stretch of time between the initial bill of rights and a couple of things that are after that and then the civil war and the 13th amendment. So that is the structure. You can look at the one you have in your hand. You have basically articles, sections and clauses. We will say article one, section two, clause three. There are terms if you go to law school you learn about keywords that are referred to as clauses as well. So for example with article four, we will talk about the supremacy clause. It is located within article four, section such and such. A useful term to refer to portions within each article. So that is kind of the outline of our class. Of course, when we get to the bill of rights, we will spend half of the class in future lectures going through those amendments. But we are going, next week we will talk about judicial interpretation philosophy, how do we understand what this document says, then we will jump into the legislative branch the week after that. So that is our structure. Now, the bill of rights is an important part for us to sort of touch on right now. If you look at your constitution, turn to article five. That is on page 43 of the booklet. And we see how the constitution is to be amended, amended. Basically what this says is there are two ways to amend this constitution. The first is that an amendment to the constitution passes the congress, both houses have to vote by two thirds, two thirds vote in order for the proposed amendment to go forward. And from there it goes forward to the states, and then you see it says two thirds of the several states shall be required to approve of the proposed amendment. That is the one way to do it. There is another way that has never been done. That is to have another Constitutional Convention. If you read the language, it describes what would be required to have another Constitutional Convention. Of course, the one advantage of a Constitutional Convention is you get a lot of work done and you could do it more effectively in terms of changing the constitution. Of course, the great danger is once you get those folks together, remember what happened in the summer of 1787 when they were supposed to amend the articles, they came up with a different document. If you brought people, the states together, delegates to have a Constitutional Convention, it would be wide open. There was a movement in the 90s to try to form a Constitutional Convention. That is still going on today. I have friends who will tell me about getting mail and so forth, calling for a Constitutional Convention. It would be quite an amazing thing if that were to occur. In the process of the states considering whether to ratify the constitution, there was a great deal of attention on this idea of rights. New york said we are only on board if you have a bill of rights added. That was not there only point, but it was there demand for going along. And so madison and others basically promised once the congress was formed, with a new constitution, it would be the first order of business. There was resistance on the part of the federalists to have a bill of rights. They thought it was not necessary since the constitution enumerated what the powers of the new government would be and therefore if they were not enumerated, no one should worry that those powers would exceed their boundaries and the rights would be threatened. But of course that was not sufficient response. And to be fair, the enumerated powers are very broad and it was not clear as to where they might go with that. So for that reason, madison promised to introduce the bill of rights and did as soon as the new congress was formed in june 1789. The bill of rights is introduced. Madison became a member of the house of representatives when it was initiated. And then the rights were passed on by september sent to the states for approval. And then you have the interesting thing that happens. That proposal, those amendments actually were 12, not 10. So 12 amendments went to the states for ratification, but two did not make it. Actually to be clear, madisons proposal had 12. One of those did not even make it, the two thirds cut. One of them did, but it didnt get confirmed by the states. If you turn in your book to the 27th amendment, which is on page 56, you see this. The 27th amendment was proposed on september 20 fifth, 1789. September 25, 1789. That is the date the congress completed passing them on. And it was ratified on may 7, what . 1792 . No, 1992. It took a little while for that amendment to get the two thirds support. So michigan finally passed this amendment in 1992. It says no law, the compensation for services and representatives shall take effect until an election of representatives shall