In this episode of Constitutionally Speaking, Jay and Luke continue their discussion of the Anti-Federalists. One of the chief objections of the opponents of the Constitution was that it threatened to destroy republican government. The Anti-Federalists believed that the branches of the proposed system did not rely sufficiently on the people, but instead shifted power to the wealthy. Many of them believed that this was precisely the motivation of the Framers, to undo the Revolution of 1776 and replace it with a “higher toned” form of government. This Anti-Federal anxiety informed much of their efforts against the Constitution, and as Luke points out, also helps explain their advocacy for a Bill of Rights.

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In this week’s episode of Constitutionally Speaking, Jay and Luke continue their discussion of the Anti-Federalists. While many agreed that the powers of the central government had to be expanded, they generally worried that adopting the Constitution was hasty, imprudent, and an overreaction to the problems of the day. Many of them argued that the Constitution was too complex to be properly understood. Patrick Henry, chief among them, warned that a constitution must be “like a beacon,” a clear signal of public purpose, and that the proposed document, with its complicated system of checks and balances, was inscrutable. Many Anti-Federalists also warned that the Constitution was the product of an aristocratic plot to undermine civic virtue, defraud the people of their rights, and turn the republic into a commercial and military empire.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the Anti-Federalists, the politicians and polemicists who opposed the Constitution during the ratification debate of 1787-1788. The Anti-Federalists had a lot of different grounds for objecting to the new Constitution, but they were still well within the mainstream of American political thought, and many of them would go on to have sterling political careers. That includes James Monroe, who opposed the Constitution at the Virginia Ratifying Convention in the summer of 1788 but would eventually become the nation’s fifth president.

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In this episode of Constitutionally Speaking, Jay and Luke discuss Alexander Hamilton’s theory of the executive branch. Hamilton was unique among the Founders for his brilliant insights into how a vigorous executive was essential to republican government. He believed that the executive branch should promote national economic development and diversification, helping to harmonize the various interests among society and ultimately protect it from foreign threats. The modern presidency of today is, in large part, a creation of Hamilton’s genius.

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In this episode, Jay and Luke discuss the importance of a written Constitution. There were multiple impulses that drove Americans to write down a governing instrument. Hailing from the Lockean liberal tradition, they saw government as a contract, which is better enforceable when it is written down. Additionally, the colonists had well-established precedents of formalizing governing institutions, from the Mayflower Compact through the colonial charters and up to the Articles of Confederation. Perhaps most important, since this was to be a republic, where the people ruled, the new government needed public buy-in that required a written document being presented to the citizenry.

Unlike state constitutions, the United States Constitution has changed very little over the decades, in part because it takes a super-majority in Congress and the states to ratify amendments. This has created some anti-republican tendencies in our system. First, there is the matter of “dead-hand control,” whereby the generation that had the greatest say over our government was the ratifying generation, which has been gone for centuries. Second, there is the challenge of working out constitutional controversies or ambiguities outside the amending process, where the super-majority requirements are too onerous to be practical. Here, the Supreme Court — the least democratic of the branches — has stepped into the gap, creating an enormous volume of common law, basically outside the boundaries of public rule.

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In this episode of Constitutionally Speaking, Jay and Luke take on the myth that our government is one of “co-equal branches.” In fact, the Founding Fathers created a Congress-centered government. It is the legislature that, if it willed it, could dominate the executive and the judiciary. The tricky part is the will of the legislature. By separating legislative authority among two chambers, and giving the president a veto that can only be overridden by a two-thirds majority, the Framers made it hard for the legislature to find the will to act.

The design of Congress thus reflects their mixed views about democracy — it is both essential to and dangerous for republican government. The Framers reckoned that, when a supermajority in Congress exists, the chances are good that it is a true reflection of the public interest. When a congressional majority is narrower, they feared it may be a self-interested faction that needs to checked by one of the other branches. So, Congress is the beast … that usually slumbers.

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In this week’s episode of Constitutionally Speaking, Jay and Luke discuss the Electoral College, the Rube Goldberg device the Founding Fathers created to select the president. The Electoral College was a compromise between multiple factions at the Convention—free and slave states, large and small states, federalists and anti-federalists. But unlike the Great Compromise, which apportioned the House and Senate differently, this one did not work very well. The Founders did not anticipate the rise of party politics, which necessitated a change in the Electoral College after the Election of 1800. In the Jacksonian Era, the rise of democratic politics obviated its original intentions. Today, the Electoral College remains as a way to apportion the strength of popular votes for president—which Luke and Jay both think is a better alternative than a nationwide popular vote.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the role that slavery played at the Constitutional Convention. The delegates, as they note, were never prepared to abolish slavery in 1787, in no small part because southern states dominated the proceedings, and the northern nationalists depended upon their support to radically revise the Articles of Confederation. Moreover, slavery in 1787 was not nearly the dominant institution it would become after the invention of the Cotton Gin transformed the economics of the South.

At this point, many southerners were frankly embarrassed by it, and George Mason of Virginia denounces it in uncompromising terms at the Convention. The real battle over slavery occurs not over the infamous 3/5ths clause, but in debates over the transatlantic slave trade, at which point delegates like Rufus King and Gouverneur Morris denounce slavery in ways that anticipate the abolitionist movement that was still decades away.

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In this week’s episode of Constitutionally Speaking, Jay and Luke discuss opposition against the Virginia Plan at the Constitutional Convention. Speaking for the anti-nationalists, Robert Patterson of New Jersey proposed what came to be known as the “New Jersey Plan,” which would only have modified the Articles of Confederation, rather than replace it altogether. This alternative is quickly defeated, but it leads to the most contentious debate at the Convention: What power shall the small states retain in the new Congress? The small states insist upon guaranteed representation in the Congress, while nationalists from large states like James Madison and James Wilson argue that this makes no sense in a truly national government. For weeks on end, the debate grinds on, seemingly without end, until a compromise is finally produced. The “Great Compromise,” as it has become known, apportioned the House by population and the Senate equally for each state. While this mixed Congress, a little bit federal and a little bit national, is hard to defend on purely logical grounds, and no doubt has created problems over the years, the Constitution would never have come together without it.

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In this episode of Constitutionally Speaking, Jay and Luke discuss the first two weeks of the Constitutional Convention in Philadelphia, where the nationalists — led by James Madison and James Wilson — make remarkable headway in crafting a new government in late May and early June 1787. Their vision is one of a national union, centered around a bicameral legislature that, by and large, is only checked by the president and the courts. Importantly, they also call for a radical innovation — for the document to be ratified by state conventions chosen by the people. Yet even in these early days, there is a sticking point — namely, what to do about the Senate. A narrow majority favors apportioning Senate seats according to population, but the small states vehemently object, and by the middle of June they are ready with an alternative plan of government.

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In this week’s episode of Constitutionally Speaking, Jay and Luke begin their review of the Constitutional Convention, held in Philadelphia during the spring and summer of 1787. First up is a close look at the delegates themselves, the fascinating, brilliant, and sometimes irascible men who framed our government. On the federalist side, there are men like the soft-spoken yet resolute James Madison of Virginia, the staunch democrat James Wilson of Pennsylvania, and the South Carolina nationalist John Rutledge. On the other side, there are men like Luther Martin of Maryland, the boorish defender of states rights, James Patterson of New Jersey, the Irish-born defender of states rights, and Elbridge Gerry of Massachusetts, the unpredictable skeptic of democracy itself. Jay and Luke also highlight crucial procedural developments, like making George Washington the president of the Convention and lowering the threshold to enact a resolution.

Recommended Reading: National Archives, “Meet the Framers.”

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In this episode of Constitutionally Speaking, Jay and Luke discuss the views of Alexander Hamilton. Like James Madison, Hamilton was deeply concerned about the problem of factionalism, but his solutions were radically different. Reflecting his longstanding familiarity with world trade, Hamilton was extremely interested in the role public finance might play in unifying and strengthening the nation. From a constitutional perspective, Hamilton thought that the best way to harmonize the various forces in society was to imbue government with a “high tone,” elevating the best characters to public office, and then liberating them to do what the public interest required. In particular, he thought an energetic executive branch was essential to good government, and was eager to empower the president to distribute patronage. Madison, on the other hand, believed that such executive interference in legislative affairs was a corruption of republican government, a disagreement that contributed to the nasty political battles of the 1790s.

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In this episode, Jay and Luke discuss the political philosophy of James Madison, the author of the “Virginia Plan” of government submitted to the Constitutional Convention. The Virginia Plan is Madison’s best effort to solve the ancient problem of securing justice in a government. The state should remain neutral between all quarters of society, Madison believed, but because individuals are self interested, republican governments tend to play favorites on behalf of the numeral majority.

The solution, he argued, was well organized political conflict. A diverse polity that takes in a number of factions would reduce the likelihood that any one group would amount to a numerical majority, and thus increase the chances that public policy would be respectful of individual rights and consistent with the general welfare.

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In this episode of Constitutionally Speaking, Jay and Luke continue to discuss the Articles of Confederation (a.k.a. America’s Mulligan), arguing that there were two major failures. First, the Articles allowed state governments to devolve into a kind of mob rule, pitting a numerical majority against minorities. Second, they lacked a national authority powerful enough to ensure coordination among the states for their mutual welfare. These problems were most evident in the way loyalists (i.e. those who sided with George III in the Revolution) were mistreated, as well as the extreme debtor-relief laws that many states passed. The nationalists who advocated a stronger central government grew increasingly alarmed, and used the Annapolis Convention of 1786 to call for a constitutional convention. However, it is the violence of Shays Rebellion (1786-87) that awakens the political class from its collective stupor, leading to the Constitutional Convention in Philadelphia in May 1787.

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In the second episode of Constitutionally Speaking, Jay Cost and Luke Thompson look at the Articles of Confederation, the first government of the United States. The Articles were too weak to accomplish the basic tasks of government, in no small part because the states were not yet prepared to join in a firmer union. Worse, the national government was saddled by other problems, like debates over federal land, a “chaos” clause in the Articles, and a congressional refusal to print money.

The nationalist faction in Congress, those who wanted a more vigorous central authority, tried various measures to strengthen the Confederation. But these all failed, and by the mid-1780s the national government was substantially weaker than it had been when the colonies declared their independence.

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In this inaugural episode of Constitutionally Speaking, Jay Cost and Luke Thompson make the case for the average American to study the Constitution. Luke notes that it sets the basic “rules of play” in our politics, while Jay points out that it was originally intended to be read and understood by all Americans, not just the lawyers. They agree that while the Constitution is vague enough to allow for innovation—Luke mentions the rise of political parties and Jay adds the role of the Supreme Court—it remains a remarkably sturdy document with widespread, durable support. They both think that for citizens to get the most out of their government, it is important for them to understand how the Constitution works. And their hope is that this podcast can serve as a nonpartisan (and fun!) source of information for people of all political persuasions.

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