Lets pick up where we left off on wednesday. The main argument i was trying to make then focused on James Madisons role as the agenda maker for the philadelphia convention, and the particular argument i wanted to make is as madison prepares himself, i think the key item he worked on in his agenda is the idea that a system of federalism based upon the voluntary compliance of the states with the recommendations, the resolutions, the requisitions that came from the Continental Congress, was never going to work. When he reasons about this, he does so in a very interesting way. He combines a set of empirical observations about what took had taken place back in the 70s and lessons americans like him had learned since 1776. How washington functions. He takes a step back, and then what he does is to think abstractly, and what we can see a, at least implicitly, theoretic framework where he comes up with the idea that because states have different interests and different interests within each state, we will always have some incentive to run against washington, to run against National Directives and national policies, and that even where states have a common interest, if you mistrust what other states are going to do, you will have this repetitive drug on the federal system. So, the federal system is not going to function efficiently. He said, this will never fail to render federal measures abortive. From that position he reaches the conclusion that what needs to be done is you need to have a system that is going to operate by law, not by recommendations. If it operates by law, you might therefore, have to create a National Government that looks like a regular government in the full sense of the term, meaning it has to have an independent legislature, an independent executive and an independent judiciary. Once you reach that point, you are in a position to start drawing lessons from the experiences that americans have been accumulating over the past decade. And madison among others have accumulated quite a bit of experience as he had been highly active in both national and state politics. Many of the insights he brought to the constitution project in 1787 came out of lessons he was drawing in the process of being a member of the congress of philadelphia and then later, princeton, and then also the virginia general assembly, which starts to eat in richmond in the middle of the 1780s. Best starts to meet in richmond in the middle of the 1780s. Madison launches into a whole new topic, three items which he lists as the multiplicity, the immutability and the injustice of the state legislation. When he gets to the injustice question, he has a wonderful passage in which he says multiplicity and immutability though bad enough in themselves are second to the injustice question, which is the idea that legislatures ruling in the state ruling in justly. That the majority who will in such governments are the safest guardians of both of the public good in the public right. That the legislatures are both best guardians are both the guardians of public good and private rights. In other words madison has reached the position where he is really starting to question the fundamental premise of majority rule. He is looking for ways to deal with what he sees as the vices the fractious majority, which is not going to be respectful editor of the public good, what is the true Public Interest on the one hand, or private rights. This is where he first thought out the analysis many of us know better from federalist 10. There are different sources of these vices. Some are the legislatures. He talks in a fairly compressed way about what is wrong with state legislatures. He said, the more frequent if not fatal source of action lies in the people themselves, and that is the point he starts which, about the way in if we are going to build a republic, we cant assume we will have a collection of citizens who will always support the private interest or public good. We have to assume they act on the basis of passion and selfinterest. We needhat is the case, to think of a way to improve the quality of our deliberations. So i raise this point because it seems to me, start with the it is criticalnk to figure out what is the significance of madison having worked out this agenda. I cant resist putting this slide up. Firsthand knowledge of madison, i always like the way my Leather Jacket goes with this answer. [laughter] this was taken when i taught in washington in the spring of 2008. I have been easy it ever since. It appears in my all personal slide of my 50th High School Reunion from last fall. This, of course, is Independence Hall at the Pennsylvania State house. So, what difference does an agenda make . It is important to understand at the outset that it was not set ab initio, from the beginning, exactly what the constitution was going to do. There wasnt circulation of ideas. There was a little bit. But there wasnt a circulation as to what the real agenda for philadelphia was going to be. Madison had worked it out, and the acting secretary of war had sent a plan of his own to george washington, the little circle of Army Officers who have their own notion of what might be gone, done, but there is not an extensive discussion about exactly what it is the convention was going to do. Can imagine, situating ourselves at the time, that there were any number of possibilities that might have been available. You could do something very much like the new jersey plan, which was introduced in midjune 178,7 i Willam Paterson put the slide up. Lets just add some additional powers to those already possessed by the Continental Congress under the articles of confederation. Maybe we dont have to change the structure of government at all. Or if we add a few powers come up maybe that really needs to be done. Position. T a bad that position says, actually, we shouldnt expect the American People to be willing to go too far, we should cut them some slack. I have lived through a long and expensive war. They are trying to recover. There was significant commercial depression in the 1780s. So maybe we should cut them some slack. On the other hand if you are a rabid nationalist, say gee, why dont we start over and get rid of the states . Why do we need rhode island or delaware . Kind of accidental communities we just became states for really no good reason, as far as i can tell. [laughter] we also have states of different sizes. Maybe we should think about the optimal size of the state . Maybe try to equalize the states, that would be radical. Maybe get rid of states altogether. Hamilton thought about doing that. We will get to hamilton momentarily, too. [laughs] in between, there is the strategy that medicine works out, which i think was quite flawed. A, it says we need a government in the full sense of the term, so we should rethink all the essential characteristics of republican government, may be bas based a little bit on reading the sources we should know our montesquieu, our locke, bs, so we dont go wrong in some respects, machiavelli. That is the experience they can have behind it, thinkers and doers and actors. That is what they can draw on to have some strategy of reform. So, of course, what follows also from the analysis of the sources allascism in states, his airing of doubts about the wisdom of major rule per se is the idea that maybe the most important thing we can do is give the National Government some authority to intervene within the states individually, not just to strengthen the National Government against the states or to make it independent givee states, but actually congress what he calls the negative we would call it a veto on all state laws. So they have that negative, they can use it to protect themselves against interference from the states. We will look at this in a couple weeks when we talk about mcculloch versus maryland, the great case of 1819. Could also use that power to intervene within the state to protect minorities within the state, against the unjust legislation being passed by majorities. This is a really expansive agenda. It opens up about as many topics as you can imagine anyone could have discussed at the time short of abolishing the states, which would have been a political nonstarter, so not worth talking about. Even though i think would not have been a bad idea. It is hard to imagine a more expansive agenda. That is why it makes sense to think of madison as a key figure, despite what his thinking was on particular items. You have to look out for certain abilities being there. You are not going to hold this the whole time . Put that down. Anyhow. Ok. The next item under the agenda is the other thing i will say, it comes out in a letter to 16,ge washington for april which you also read for today, madison says the first thing we have to do is to solve the problem of representation. Medicine was firmly committed to majoritarian principles in both houses of congress. You need a legislature to act on behalf of the American People, and not just through the states, it has to be bicameral. Ofison insists on some rules proportionality has to apply in both houses as opposed to allowing each state to have an equal vote. So madison says we have to , figure this out first before we decide which powers the National Government will like to will exercise. Other delegates dont agree. Like John Dickinson of delaware, said, why do we do it the other way . Why do we start by figuring out what powers we make gift of the nationalis National Government . Maybe we dont have to alter the structure, alter the role of voting. A different position. He said, we cant agree on what powers we are going to give until whether or not we determine the allocation of representation will be respected or not. That is what drives the first six or seven weeks of the convention. That is why when you get to the debates in philadelphia, which we know from a madisons note, we see that one issue, the apportionment among the states in both houses is ready the one dominant issue until you get to socalled787, and the great compromise. Compromise gets me to the three myths about the constitution, which are the real subject of todays lecture. So here are three questions that we are going to consider. This is fairly familiar stuff. We deal in effect with article one, article two, article 3 we deal with the articles relating to congress, relating to the executive, the article related to the judiciary. If we have more time, there are other things we could talk about. Under the federalism category article 4, 5, and so on. Three agreements, the three suppositions which are the most common when we think about what happened in philadelphia. Lets start by outlining and try to talk about each of them individually. By the way, if you have questions, it is fine. Go. Can tell i am ready to if i am looking too fast can let you might win to interrupt me or stop me or even challenge my suppositions, bio means. I actually had a chance to say to senator barroso i had dinner with him a few months ago. I said, why does wyoming have two senators . Just very serious guy, he didnt pick up on the question. Anyhow [laughter] the first one i think is the most familiar one. Here is the, supposition giving each state on equal vote in the senate was a true compromise in the best sense of compromise onue representation, where is the 3 5 clause over slavery was a moral failure. I suppose i could have added it was politically unnecessary. So that position i am going to argue is, i am very much against giving each state an equal vote in the senate. I am kind of with madison on this. Go back to my prior slide, maybe not so bad a position to be, and i will try to explain why. If i say that i like the 3 5 clause, i want to make it clear from the beginning, i am not defending slavery, not arguing that africanamericans are. 6 of caucasians or others. That is actually not what the three first class does. Is that it is a very significant basis for are veryding the there real, very significant basis for understanding there is a much deeper and longer lasting compromise was meant to be incorporated into the 3 5 laws. Clause. It was true in the case of the state vote. I will explain as i go on. Again, i am not defending slavery. I dont want there to be any misunderstanding. I think in political terms, the 3 5 clause case is much better than the case for the equal state vote. I want to try and explain where think that. The second supposition is the common supposition is why do we have the Electoral College . Because the framers feared democracy. They were very skeptical and nervous about allowing people to vote for the president. I think that its wrong. As soon as it goes into operation in the significant way in 1796, it was already obsolete under certain suppositions. The first article makes a difference, you realize it is never going to react in any way resembling what people thought it might do. If you think, it was the deciding that a better class of select group of electors to choose the president. The third thing is the point that should be familiar to anybody who is thinking about going to law school, the judicial review of legislation. The idea that courts should apply constitutional standards to legislation in order to determine whether or not legislation is permissible or not. There is a supposition that that was not part of the framers design. But it really came into being out of marshalls great opinion in mcculloch versus maryland or marbury versus madison in 1803. Anything that is bunk. I think marbury versus madison is an interesting case, but not a significant it is for one. Different reasons other than the ones that destroy political scientists. Marbury is a case worth studying , but was it consequential . I dont think so. I think the origin of judicial review lies elsewhere, and i will give a short information. So those are the myths we will three talk about. Lets bring a few characters online so we know who they are. So this is alexander hamilton. Along with madison, he released, along with madison, jefferson, franklin, maybe john adams, kind of the five most powerful minds generation. Rkable hamilton, of course, is famous at the convention for giving his speech on june 18, a famous speech because it is favorable to british constitution and astonishes everyone and has very little impact. Hamilton, in fact, was not all that active a delegate in philadelphia. Much more important was the original author and madisons coauthor in writing the federalist. Two of the new york delegates left early to go back to new york. You guys will become experts on new york over the weekend. And hamilton, he kind of goes backandforth, mostly back to new york during the convention, although he does come back in the end. He goes back to his family. Thinker. Or, major in my view, maybe less a cost additional list, but americas great statebuilder in the 18th century. Once he is there, he makes a great impact. Madison of course here are two other princeton guys. On the left is Luther Martin. Not martin luther. In case there is an idea on the exam, you can get the names in the right order. And william patterson. Martin is from maryland. Martin will be the attorney for maryland in the great case of mcculloch. 30 years later. He gives the famous speech , whiching states rights was probably delivered under the influence of a spirit, which translated, is alcohol. Prof. Rakove alcohol. You can tell from the way patterson describes how martin was talking, humor have gone on a bender in order to get ready to talk. Patterson is a much different guy. He is the son of scotch irish immigrants, had a very small a law practice before the revolution, and then the revolution gives him lots of opportunities. He serves on the first Supreme Court. He was the principal author of the new jersey plank. Then i put a couple of new. Nglanders out here the guy on the left, elders gary, one of the very wealthy merchants who would not sign at the end of the convention. Up from the north shore, boston. And Roger Sherman who figures prominently in the case for the equal state vote. Sherman was actually a merchant who had married well. You you cant quite make it out here, but sherman had an awkwardness to him. Sitting inis this chair . Picky and relax. He just cant relax for the portrait. He is still kind of sitting there, cant quite unwind to allow his portrait to be but painted. Yeah, sherman played a very active role in terms of supporting equal state votes. There are other delegates i could show, but that is enough. A point up here i could talk about later, but not so lets go back. First. I want to talk about the two compromises. So, representation. Compromise, of which we mean essentially the decision to give the states and equal state vote in the senate, was that a great compromise to be admired or not . The other side of the compromise is, of course, the three fisk was, under which the 3 5 clause, under which allocation of direct taxes would be allocated among the states on the basis of the population, with slaves counting as. 6 of free persons. Everybody knows what is meant by that phrase. Ok . If you go back to that letter from madison to washington, the april 16, 1787 letter, madison discusses his political strategy for dealing with the representation question. And does identify the theoretic aspect of his thinking. He says, here is how he thinks or hopes the politics of this issue will play out. He thinks the northern states will favor the idea of proportional representation in both houses, because they have the population advantage now. So it is in their current interest. Imagines, is other people did in the 1780s, which turns out to be a big mistake since madison is not unique in this, he also imagines that the population in the decades after the revolution will work to the advantage of the south. The south will come more into parity with the north in terms of population, and, therefore, correctly,ltivating delegates from the south will recognize that in the long run, this kind of formula will protect and serve their interests. That is not a bad argument. Other southern delegates shared it. In fact, if you try to explain why we have the census every 10 years, it is the southern delegates, led by edmund randolph, who insist, we need a census taken. Rather than leaving it to congress to determine under its own discretion how streets will be apportioned in the house of representatives, the southern delegates, led by governor of course, madison addresses randolph as my dear , wears jefferson when he writes him, addresses them as dear sir. Interesting nuance in that. So, if you feature the minority region but it will work for you in the long run, you want to make sure there is a rule of representation and specific provisions to make sure that will is honored as population shifts over time will be provided for in the constitution rather than the discretion of congress to view existing majorities. You may want to have the role locked into the constitution to protect your interest over the longterm. So, madison says im a here is the aces for lodging by proportionality should appeal on a regional basis. What do you do about the small states . Madison assumes they are just small states. You know . Where are they going to go . What is delaware going to do . What is rhode island, the home of jews and infidels, going to do . Here arent that many people they are just not going to have the same power to resist. That is madisons calculation. He thinks he can argue them into giving up on the point. I dont think it is a bad argument. What is the basis of the argument . An argument comes out in the passage i have here if we went back to the devices of the political system, if you guys remember the basics of federalist madison was famous 10, for arguing, what is the basis of political affiliation, political orientation in our society . We want to identify what are the real interests, opinions, and passions that swirl through the body politic. What is it that makes us act politically whether we are voters or whether we are officials question mark. The basic argument is, we have to identify our passions. Do we identify ourselves with an ethnocultural identity . It could be occupation. It could be residents. The kind of community and i want to stress, community not the state but community in which you live. It could be a lot of political affiliations that follow what we call ethnocultural, religious lines. You know jews and , africanamericans vote highly democratic. Wasps tend to be republican, and so on and so on. Madison does want to argue, and this is a big basis of his argument, the size of the state in which you live is politically irrelevant except under one condition. Ordinarily, on every occasion, the size of the state in which you live will have no effect at all. It will have no effect at all on your political behavior. You will never ask a question, how should the small state vote, how should the largest state photo, except there is one exception. What is the obvious exception . [indiscernible] prof. Rakove no. [indiscernible] prof. Rakove well, that will get factored in. You are getting to the conclusion before you have formulated the thought. It is not about Electoral College. But you are close. [indiscernible] prof. Rakove that has to do with the opposition. Has nothing to do with the size of the state. Let me take a step back. If you are having an argument about whether or not small states deserve to be over represented just because they are small, madisons argument would be that small states do not deserve representation per se because size is not correlated in any way with their interests. You are just going to give them a benefit because they are an easy and they feel like they would lose something. The exception is when voting on rules of voting and you are not operating under a veil of ignorance where you dont know what your social position will be later. So if you are voting on the rules of voting and you know what your interests are, of course, you have an incentive to favor larger states. Of course, madison who comes from virginia, cant be dismissed except that he was right and Luther Martin was moot. That is the key argument here. Size does not affect our opinions. Heres an example. Suppose youre a big Second Amendment guy. Oor, really idiotic woman in idaho who got into a walmart, just so she could be twoyearold, of the many tragic stories commit this is one of the most absurd. Lets look at the strong Second Amendment person, you really believe in hunters rights. Doesnt matter whether you live in what is called the venison belt, from michigan to pennsylvania, workingclass guys who like to go out with their rifles on weekend, to plug away eer, or whether you live in idaho or wyoming, do you really believe that gun rights, if you are like Charlton Heston or wayne la pierre does it matter . No, that is your issue. If you are africanamerican, does it matter if you live in alabama or illinois . Probably not. Issues of Racial Justice they may present themselves somewhat differently and so on and so on. Those are real issues of passion. Size might sometimes be a variable for somebody else, but it doesnt predict playing a role. Rhode island is a small state and heavily industrialized, highly organized. And so on and so on. That is is essential argument. The slaverythis question to mind here. Madisons position would be that and that of his allies like rufus king and hamilton and others would be let me close the door here. Sorry. Madisons concern is what you really want to do is identify, what are the real interests that the country has to work on . The question of small states and large states stands ephemeral. You really want to identify, what are the real interests that the country has to work on . It is an interest at the convention because they have the small state delegates and there, and you have to listen to their arguments. William patterson, sherman, johnson, dickinson, martin at he kind of drives people nuts because he is so repetitive. At the end you do not find it very convincing or persuasive, because you know correctly that size is not a predictor of political behavior. Size will not be an issue henceforth. What will be an issue is slavery. And that is what this quotation quotation theoration little at the bottom of the screen here. Madison gives of this speech on june 30, just at the point where the convention is about to deadlock on the question of representation. They find themselves more or less equally divided and madison tries to break the deadlock, and this summarizes his position. Madison concedes it is important to identify the interests, where identifiable interests we want to know where they are and they are entitled to some security. Why would you enter a constitutional compact if you thought your interests were not the secured . Basically, we have to identify what interests deserve recognition. This is madison speaking for himself. By the way, a colleague at Boston College has a book coming out next year called madisons hand. Thes a biography of his notes from the debate, which forces us to think exactly how and when did madison write his notes and how and when did he revise them . She has an argument, not all which i agree with, but it is interesting, about the way that madisons views may have shifted notes may havehe altered. You can read it when it comes out. Thisould be out sometime year. Like every other text, we cant simply assume this is sacred scripture. But lets take it as it is because i think it still expresses the genius. The states were divided not by difference of size but by other circumstances. Fromresulted partly climate. That is a very much a skew notion, here is californians without the polar vortex, we can appreciate the significance of this statement. The idea here that climate is a major determinant of classic argument that guided many cultures. Whether partly from climate but principally the effect of having or not having slaves. These two causes confirmed the division of interests in the United States. It did not lie between the large and small states. It lay between the northern and southern. Doing atson was this point was a delicate operation, he was trying to introduce the slavery question, which wasnt an easy question to introduce, because it identifies and ephemeral difference of interest. But he wants to introduce it because he was to come up with a valid argument as to why the small states have no valid claim for an equal stake vote in either house of congress over the long run. Theyou will see this in coming weeks when we talk about civil war and reconstruction. Madison is 100 accurate here. This was the lasting interest, certainly through the civil war and reconstruction, arguably, if you look at the state of american politics today, you link the politics of race and the politics of slavery, muchons sociology is better than when they say the real conflict of interest is between large and small states. He is trying to argue, he is trying to convince the other delegates of why he is right on the merits. So, how does the story play out . Deadlocksconvention on the representation in the senate. A couple of days later, there is a Compromise Committee that meets. Madison israel much against a Committee Meet madison is very much against a Committee Meet. The convention is not that large anyhow. The Committee Comes back with a proposal on july 5. They take a day off to celebrate the fourth, which was becoming a holiday at that point. Then at that point, the convention agrees in the matter of a few days, they kind of work their way through the 3 5 clause. Essentially, the outcome of this is to accept the 3 5 clause for the house of representatives. You get some interesting debate here. People like patterson say, the real principle of representation is you are substituting the Larger Population with Political Rights. Since slaves do not have Political Rights at all, they shouldnt be factored into any kind of algorithm are simple formula for representation. They dont exist politically. Slaves are simply the object of law, they are not subject of actors. Women and children, are they subject of actors . They do have rights of their own. They are primarily property, slaves do not. They are primarily property. Southerners say no, but this is property which is important. This is somewhat euphemistic in many ways but it is a sectional deal. I think it is a good deal, again, not because i like slavery or not because i am trying to trash the constitution. You have two regions with very different interests and you want to put together in national union, this identifies a lasting interest that you have to compromise. It is ugly to us. It is a moral failure. We wish the framers were more enlightened, but the fact is that they embedded the national structure. This was framed as an antislavery document, would never have been ratified. So the convention deals with the 3 5 clause for the easily. pretty easily. Statements,me moral interesting statements. That at thatte point in American History, slavery was becoming a moral issue. Most people think it becomes a moral issue sometime in the middle of the 19th century. Second half of the 18th century, it does become a moral issue. You can see how those concerns are resonating through american thinking in the debate of the convention. Are you ok . Going to make it . Ok. If you need first aid, let us know. [laughter] take care. The slavery question is dealt with pretty easily. What happens with the equal state vote, it passes by the narrowest of margins. It is not a compromise, it carries 54 there are 10 states present it carries 54, with one state, massachusetts, divided. [inaudible] prof. Rakove ok. Sorry about that. Shh. So it passes five to four with one state, massachusetts, which is one of the three most populous states, divided. Massachusetts is divided because eldridge gerry, the guy i put up earlier from the north shore at marblehead. He was the first maverick of American History. He and one of his sidekicks, they split the vote. That would happen, with the Electoral College is, we start calling compromises. But that is more for justifying it to the public rather than to describe what actually happened. One side won and the other side lost. That is why wyoming, for better or for worse, and idaho, have two senators and california with its 37 million people, we have two too. There is you know this one . The old ladies are just as good as you, and you got 12. My Favorite Movie as a kid. Anyhow. That is cary grant, whose daughter actually babysat for us some time ago. [laughter] anyhow, i like the 3 5 clause, not because i like slavery, but in terms of what it says about the politics of constitution making. Secondly, the grounds for political selection, lets get the big guy out here. You can tell from one i stood next to madison, if we were on the court, washington, you could post him. He is more mobile than the average i dont know, but in any case, washington was a big guy. 63, 64, he would tower over 98 of the soldiers. Many of them were 54. Madisons size. There is a standing story that the presidency was created in washingtons image. Thats not true. Its not true at all. The framers went round and round on the presidency. Decisionsthe critical only in the last week and half before the commission was adjourned. They did so under conditions of profound uncertainty. Let me try to explain why that was the case. I will try to do this in seven minutes and save five minutes for the judiciary, then we will wrap it up. For starters, the first thing to realize is that this was the one area of power where they really had to improvise or be creative the most. As i said in the outline, there was no adequate model of president for National Republican executive. Executiveidea of power in the 18th century is still very much wrapped up in the idea of monarchical government, which the americans have rejected, or ministerial government like in Great Britain , which americans also renounced. A big part of their political convictions going back to independence in 1776 was that the british constitution was being corrupted by a ministry that was really a kind of powerseeking seat of aggressive officeholders. So there was no real precedent for what a National Republican executive would look like. You really did have to make it up and think creatively. The dominant images monarchy. That is not going to work very society. Republican the framers did reach two decisions quickly which indicated how they were starting however, about the republican enthusiasms of 1776. They agree within the first week of debate that the executive power should be vested in a single person. It will not be a collective executive. The first sentence of article two says, and will talk about this down the road, the executive power shall be vested in the president of the United States. Significant statement. There was an executive in pennsylvania. But the idea that the executive power resides ultimately in a single figure who is the Decision Maker . That is a pretty significant step in and of itself. The framers agreed that the executive should have unlimited limitedto negative veto over National Laws that restores what we call one of the key prerogative powers of the british crown. It hadnt been used in britain since th 1707. Guy at harvard has written a really interesting book that suggests that there is a group of patriot royalists who actually like the 17thcentury notions of monarchy. He has a good argument, some of the arguments i find deeply unconvincing, but it is an interesting way to think about it. Ok. They Reach Agreement on those points quickly, then you have this puzzle where there is no political precedent for knowing what a republican executive is going to look like. So, they get really hung up on the question of elections. There were three obvious modes of elections. That they could have picked. One is popular election. James wilson from pennsylvania, who also serves a scotch immigrant who also serves on the first Supreme Court, but then dies bankrupt of a heart attack in in North Carolina jail in 1795 or so, came to a bad end he was a big advocate of popular election. Madison was skeptical because of wilsons position. But having the election by the people has two problems. One is, if you have a genuinely popular election which, by the tomorrow, geto rid of the Electoral College, just have one big constituency and call it the United States of america. If you have that kind of election, thinking in regional terms, the south would be a big loser. Why . Because in the south, only citizens would vote. Slaves had no recognition. Depending on which county or state you looked at, slaves were a major part of the southern population. But if only citizens vote in one big constituency, the United States of america, the south is the loser. So there is a big regional problem. It makes the virginia dynasty kind of hard to imagine under those circumstances. The second problem is the federal problem. It wasnt that the framers feared democracy, that they werent that American Voters would kind of follow passively or get whipped into some kind of frenzy to follow the next guy to come along on a white horse, or a palomino, or whatever. What they were worried about was an information problem. It would be hard to identify, what they say truly national characters. Their favorite word. Washington is a nobrainer, as assuming you can get him off mount verno and get him back into the public sector. But it is a good assumption, not unrealistic, that people would vote on a provincial or regional basis. It would be very hard to get a majority without having some kind of mode of ongoing elections. Popular election was pretty problematic, not because the framers worried that americans would be swayed by protofascistic demagogues, most of the characters or worse, try to get worse, but you can do it if you try. It is not that they worried. Bout that when you get 101796, jefferson and adams run against each other. The framers had not anticipated that electing a president would work when you create more parties down the road. It is not a bad expectation for 1788. You can solve the information problem easily. If you want to have informed electorate, some of this may sound counterintuitive, but it isnt just have a legislative election. Have congress elect the president. Though, who that, is going to be better informed than congressmen . Who is going to be more knowledgeable than members of congress . By definition, they are the most qualified. So you have solved the information problem but you have another problem. What you really want is a president who will be an independent executive. If the president is going to be elected by be anss, he has to independent president. He has to be a oneterm president. You cant give him the second term, because you give him the second term, he will go to the majority in congress. He wont be independent. He will be a a tool to use a , popular term in the 18th century. Hamilton is in some ways the most interesting example. Some people understand correctly that ambition was something that the right kind of ambition was something you wanted to spur n. If you put a president in charge and make all the motives that is going to encourage all the good motives of good governance. The federalists dont agree because they worry about tyrants and stuff. We will talk about that next week. See if you want to argue about this in your capacity at delegates. But that is the decisive consideration. It wasnt that the framers feared democracy. The argument here is the two other votes of election, popular election, which would have worked quite well from 1796 on, byelection o congress, which could have worked well anytime. Both of them appeared to be killer objections. The Electoral College is left as the kind of default mechanism. It has one obvious advantage by the time it is adopted. ,n the week of september 48 the convention adjourns on september 17, so just one week and a half before the convention adjourns, by that time, the framers had worked around the idea that the constitution is going to go to the people. It is in our interest to present this as a compromise. That is why you see the structure of the Electoral College. The large states get the one. Tage in round if you cannot produce a majority for electors in terms of how electors vote, they all have to put on the same day. Originally, it was going to go to the senate, but since the senate was linked to the president and the treaty power, it takes the convention three days to figure this out, then you allow the house to vote as if it were the senate. To replicate the compromise that went into the formula for constituting congress and you solve the power question. Because the president can run for reelection. An incumbent president would be in a different situation than a newcomer. Who were the electors going to be . Nobody had any idea, who they would be how they would , deliberate, what knowledge they would have. It is kind of an empty placeholder. George mason says they might be , men, not even the second if you ever meet an elector in your life, it doesnt make any best see if it makes any difference to your political perceptions. [laughter] that is my second point. Third point has to do with marbury. We started a bit late. It is going to be about three minutes and then we will try to wrap this up quickly. The famous quotation from alexander beckel, whose book, the least dangerous branch, probably be good at work of modern constitutional theory. The vast possibilities of the presidency were relatively easy to perceive and soon inevitably materialized. Institution of the judiciary needed to be somewhat up out of the constitutional vapors, shaped and maintained, and the great chief justice, john marshall, was there to do it and did. The time was 1803. This was in the case of marbury. N versus madison are marburye skeptics, the way i am. Let me try to offer an alternative, it will be madisonian. , thef madisons proposals laws of proportional representation, the idea of following an example in the new york state constitution and , whicha causal revision would be a joint executive and Judicial Council which would possess is noted below over legislation. Madison like this idea . Because madison was first and foremost a legislator. All his experience had been in activities of collective deliberation, whether the Continental Congress or the virginia assembly. Was deeply, deeply mistrustful of the quality of legislative deliberation. He is looking for ways to it. Ove it and to enhance so if he is skeptical about it, will bes the key thing to try to improve the quality of legislative deliberation ex a nti. It is much better to have statutes that are better drafted at the beginning, than to have to deal with poorly drafted statutes later on. Improve the quality of lawmaking before a statute takes effect, than to deal with the consequences later where it has to be litigated out. So madison sees the tradeoff here, better to have the legislation than to deal with the consequences. Councilproposes a revision, you see that all the other favors understand, except for james wilson, they think that this is not a good idea. Their basic argument is that a, judges cannot act in political capacity. It would compromise the judges role when youre involved. It is not easy to draw the line between legal advice and policy legal advice on the one hand, and policy decisions on the other. And secondly the proper time for judges to determine constitutionality is when you have cases of controversy, instead of imagining something before it takes place. The better outcome is to let a real controversy evolve in them and then work it out. In that basis, the idea that marbury versus madison, which no one sites afterwards, is the source of judicial review. It is a new idea and the framers were aware it was a new idea. The real application of judicial review as i think the framers thought about madisons wealth, would not be against congress, it would be against the states which is, by the way, what the supremacy clause of the constitution does. The real application of this review would not be against congress. The real application of judicial review first and foremost was an alternative to madisons idea of coercing the states into doing what they are supposed to do. To write a legal remedy for efforts by the state cannot comply or somehow try to muck up national legislation. So it is a great federalism question. But the the idea that they were trying to be novel, i think that is a big misconception. We will come back and talk about this in a couple weeks when we talk about mcculloch v maryland and marbury v madison. The two seminal cases. So, thanks a lot. We really left all of the stuff we need for next week up here. Federalists, antifederalists, moderates, and some other stuff. Here is the outline for today if you want to have it. She will take the lecture and she will start working on her nose so you guys will have it. We will all be here, i hope, on monday, and we will see how this experiment goes. Thanks. You can watch lectures in history every weekend on American History tv. We take you inside College Classrooms to learn about topics ranging from the American Revolution to 9 11. Saturday 8 00 p. M. Eastern on on cspan3. This sunday, a filmmaker discusses his book screening reality how documentary filmmakers reimagine america, which explores the history of nonfiction films and television from late 19th century Thomas Edison films, to 21st century reality tv. Heres a preview. When war came to the united 1941, many of hollywoods greatest directors signed up to apply their fictional movie skills to making documentaries. Seen here in the upper left, frank capra, below it, george stevens, in the center, george ford, to his right, william weiler, traded scripts were stories which didnt follow standard plot lines. Nonfiction filmmakers and their films interacted with the world around them. During world war ii, a long tradition of Racial Injustice needed to be confronted. The documentary, the negro soldier was an attempt to include africanamericans in the nations military history even as segregation remained in place. Oops. After victory in the film let there be light comic oh hollywood director john houston addressed the reality of what combat can do to the human mind and spirit. Therapy showed how can help. War ledrayal of the his film to be banned for 20 years. In the late 1940s and 50s, even as airtime was mostly consumed by easy entertainment, the powerful documentaries the power of revealed. Ies was their critical examination of the influence of Joseph Mccarthy contributed to his downfall. But it wasnt long before challenging longform documentaries and cultural programs were headed toward extinction on advertising driven american tv networks. Learn more about the history of nonfiction filmmaking this sunday at 2 30 p. M. Eastern, 11 30 a. M. Pacific here on American History tv. If you like American History tv, keep up with us during the week on facebook, twitter, and youtube. Blog about what happened this day in history and see updated clips of upcoming programs. Follow us at cspan history. This sunday on a twopart program, a house of representatives historian and a inator look at Women Congress using artifacts and photographs from the election of 1917, 2e rankin in representatives in the 1970s and 1980s. Heres a preview. Here we have a campaign postcard of Martha Griffiths, who was one of the influential women members from the 1950s into the 1970s. She represented a michigan district. Like some of the other women like jill butler hansen, she has a lot of experience before she ever comes to congress. She is a lawyer. She serves as a judge in michigan, and she is elected to the house in 1954. She comes in 1955. Intotoo, very quickly position of influence. She is the first woman, after a number of women in congress had campaigned with the speaker, to get a seat on the very exclusive ways and means committee, the tax committee. She reallyosition, weighs in on a lot of the issues affecting women monetarily. But she is probably best known as the mother of the equal rights amendment. Every year, she reintroduced legal rights amendment, which has a history in the house in congress, going back to 1923. Was stuck in the Judiciary Committee and it never came out. She was a lawyer by training. She was very critical of the Supreme Court. She didnt think the Supreme Court was ever going to decide a case that would make women truly equal with men. So she got behind a new poll amendment. She gets it out of a Judiciary Committee with a discharge petition in the early 1970s, passes the house, stalls in the andte, then she comes back doesnt again in the following congress. Finally, the e. R. A. Passes in 1972 and it goes out to the states. It is never approved as a constitutional amendment, but Martha Griffiths was really among a core group of women, that prime mover behind that. In the 1954 civil rights act, she was the other thing was the 1954 civil rights act. She was interested in pushing an amendment through that would give women equal rights in terms of employment, but she was very cagey about how she did it. She knew the chairman of the house rules committee, howard smith, who was a committed segregationist, he wanted to act. The 64 civil rights and she caught wind that he was going to introduce an amendment that would introduce sex, the work sex, into an amendment amendmentsex into an that would have provided equal economic opportunity, title vii of the civil rights act. So she held back because she knew that smith could bring a lot of southern votes with him. Simply as aed this gimmick to sink the civil rights act. The floor andonto talks about how he wants to insert the word sex into the amendment. There is laughter and giggles around the chamber and people guffawing. Martha griffiths follows smith up on behalf of the amendment and she said, if there was any need to prove that we need this amendment, the laughing and the guffaws prior to me getting up here, they proved it. The chamber fell silent. Eventually, that amendment in title vii was included in the act. Rights so, again, and key legislative action by m Martha Griffiths. Learn more about women in Congress Sunday at 6 00 p. M. Eastern and 3 p. M. Pacific here on American History tv on. On the presidency a conversation about portraying Abraham Lincoln on the stage. A fords theatre director talks with a playwright who wrote necessary sacrifices a play about two meetings between lincoln and abolitionist frederick douglas. They are joined by an actress and actor who played lincoln and douglas respectively. Today we are happy to welcome playwright