Development of the u. S. Constitution and what he believes are its main principles. Mr. Mcnulty served as Deputy Attorney general in the george w. Bush administration from 2006 to 2007. Good evening. Welcome to class number two of our study of the u. S. Constitution. Great to see you all here tonight. Last week we looked at the history, a brief look at history that toledo a drafting of the constitution. I want to just recap that quickly tonight as we start because as i try to communicate last week, the drafting of our constitution, the history of its formation is extraordinary to say the least. It is a remarkable moment in all of world history. And we are here at 233 years later and our constitution is in the news daily, being referred to as we almost speak here tonight in the United States senate again and again in reference to one particular aspect of the constitution, but, again, its alive and well. Is to think about the fact that this came together from a period of midmay until midseptember of 1787 is really remarkable. We recall from last week that we said that the revolutionary war, and a lot of folks arent clear on the sequence and its important to know it, that conflict began in lexington and concord, massachusetts in 1774. These very independent colonies, all british colonies that bra operated with their own governments and own leadership had to come together and form a military alliance and it wasnt easy for them to do that. They had a lot of hesitation and concern what it meant to be together. But the wren my was the justification for their alliance and so they formed that alliance with the First Continental Congress and in 1775 they come together by, of course, july 76 they make a declaration of independence together and now we see we see a nation starting to be born at least for purpose of declaring their independence and working together for a common military purpose. Now a year and a half after that they form the articles of confederation. And 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 that, referred to the colonies referred to themselves as a firm league of friendship, interesting way to describe this new United States, sort of like nato or some type of International Treaty of countries, individual countries coming together. It took three and a half years for those articles to be ratified and to be effective. The necessity to form a nation was clear and they put together articles that are very loose, dont require much. They are minimal in terms of government structure. And yet it took three and a half years for everybody to get on board and gleam. And yet we see, of course, severe limitations, significant weaknesses to the articles of confederation. By the way, as those articles of confederation were being considered, or shortly after they were considered they were approved by sufficient or by other states by march of 1781, the british surrendered at yorktown in october of 81 so military conflict was over by ten of 81. So now theres sort of peace although the british army is still present in new york and it took a little while for them to actually leave the new union. But during this time the articles now 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. It was only one body, one house congress. One had to basically be in agreement to do anything. It gave the states tremendous power, virtually all power. And as a result lots of things were going on in states that were really unsettling with regard to recognition of Property Rights and doing justice and this was something that madison was especially concerned about. That period of time by the way, that 11 years between articles of confederation and then finally 1787 and the Constitutional Convention is a fascinating period and as i was preparing i pulled from myself a book called the confederation and the constitution. And this is a book that i had to buy for my Early American History course in 1977, i think. Very longtime ago. I was a history major and i kept all my books. Who knows maybe when youre in your 60s youll have your College Books around. I have a lot of mine. It was useful. And its a fascinating period of time in which the country is, again, trying to come together and be a nation. Well it wasnt working. And as i talked about last week, Alexander Hamilton especially is concerned and 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 87 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. And as we said last week something much different than that occurred, in the book i recommended to you, the paul sopranos book on the constitution, they refer to it, foreand son paulson refor it as a cout des the ta trt and forme document that was completely knew. Threw out the articles of confederation. Formed this new constitution something which was way beyond their man tate and able to get that actually ratified. So that in itself was a major milestone in American History. Hamilton was in a sense the instigator who was able to get this convention called and to encourage it to be bold and take action. George washington was brought to chair the proceedings and he didnt say much as chair but he encouraged them also to be bold and to do whats necessary. Madison was the architect. The one who did the most work. The one who came prepared to real really, brought a constitution basically with him. And was prepared to lead anyone the light. Didnt miss anyone in the proceedings and took extensive notes and its his notes that we can rely on the most to know what happened during that remarkable convention. Wilson from pennsylvania was kind of a draftsman who helped work with madison to get the provisions right. And then morris, morris was the word smith that wrote the words that have become famous and the preamble in particular. When madison came prepared he came with the virginia plan. He said and the virginia plan called for basically what we think of today in the structure of the constitution, the sprafgs powers and federalism and so for, thats tonights focus. But the one weakness tip virginia plan was that it called for representation based on population for the house, and the senate. So it was a Bicameral Legislature and that was an improvement or the articles of confederation. That wasnt unprecedented. That existed already in parliament. But elected based upon 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. So it is sometimes called the connecticut compromise. The great compromise was we like what youve gone, mr. Madison, it is a great framework but this one wont work. Well go with something different. Every state will get two senators and well have a Population Based representative elections for the house and so that was how they worked that out. And there were many other debates over important things and well talk about a few of those tonight. By sent 17th they were able to sign that constitution. Merely everyone, not everyone, but merely everyone three famous participants ended up not signing. But they came together to sign the constitution. And then the ratification process began. Now at this point we have to appreciate how controversial the document was. It had strayed from the mandate as to amending the articles of confederation. The states, so independent minded were very concerned about what had been created and there were objections throughout the colonies. As the various states held their ratification conventions, and by the way that is the way it was set up, they had special conventions for purposes of ratification, not just a vote in the 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 wasnt enough protection for rights that there werent enough safeguards in place. And between the two things, the centralization of power and lack of guaranteed rights, there was a lot of difficulty in getting states on board. One great description that is part of a wonderful introduction to my copy of the federalist papers, im going to talk about them in just a moment, but a columbia historian who wrote the introduction to this publication of the federalist, robert ferguson, he describes it this way. We forget hour controversial the constitution was in the moment of its birth. The document that now governors the United States was drafted in secrecy by men who knew they had acted beyond the mandate given to them, sent as state delegates to philadelphia in the sum of 1787 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 left autonomy in the hands of the states. Nevertheless, five years would pass before the states approved even this loose coalition and they did so in 1781 only after many revisions by revolutionary leaders who feared centralized authority. The framers of the constitution of philadelphia basically ignored these fears. Instead of tinkering with the arrangement, they junked the articles of confederation all together and wrote out thur document of fundamental principles and when they were done they have a stronger ideal of union than the suspicious compromisers of the original federation had contemplated or who have allowed. So 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, about a month after september 17th, 1787, the first one of these oped pieces as we think of them today, they were essays, appeared in a new york publication, late october of 1787, drafted by Alexander Hamilton. And so he wrote the first paper in defense of the new constitution. Now hamilton, madison, and jon jay wasnt even at the Constitutional Convention, didnt 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 august of 88. At one point, before they were even all done, they were collected together in a publication and that is when they were first called the federalist. And today we refer to them as the federalist papers. Jay only wrote five of them. He became ill at certain point and wouldnt be able to contribute more. So hamilton and madison split the job. Hamilton did more, a bit more than madison. They used a pen name for them. Their pen name was publias named after the founder of the roman empire, publias polaris. A pen name was a very statesman like educated persons way of communicated. It was known who were the advocates for the new document. And jefferson, who, again, wasnt at the convention, didnt sign the constitution, when he got a chance to read the federalist paper, the essays, he said, quote, the best commenty on the principles of government, whichever was written. Let me read just a few lines, a first few lines of the first federalist paper by Alexander Hamilton. This is how the federalist papers begin. After full experience, this is by Alexander Hamilton, 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 and 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 societies of men are really capable or not of establishing Good Government from reflection and choice or whether they are forever destined to depend for their political constitutions on accidents and force. That is just a taste of the brilliance of the federalist papers. So those papers came alongside the ratification process and helped to address every argument, every issue that was being thrown up against the new constitution. So lets jump in now to 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, im not going to make assumptions and i want to make sure were all on the same page. So lets look at the structure of the constitution. Its brilliantly simple, isnt it . You have the preamble, the preamble in itsel kwens reflecting the declaration of independence with regard to the will of the people to express their own form of government. So we have the legislative branch, article one, the executive branch, article two, the judiciary branch, article three, you hear of article three judges, that means a judge appointed according to this article of the constitution, state to state relations and federal to state relations all brought together in article four. 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 that first ten amendments because that is the bill that was introduced by madison and so to be perfectly precise, you have the bill of rights in those first ten amendments that were ratified and then additional amendments since then. There was a quite a stretch of time between the initial bill of rights and a couple of things done needily after that, and then the civil war and the 13th amendment. All right. So, thats the structure. And in the structure of the constitution then you could look of course at the one you have in your hand, you have basically articles, sections and clauses. And so when we talk about the constitution we say well that is in article one, section two, clause three. And then there are terms that if you go to law school you learn about key words that are referred to as clauses as well, so, for example, when we get to article four well talk about the supremacy clause and that clause is located within article four, section such and such and clause such and such. So it is a useful term to refer to portions within each article. All right. So then kind of the outline, too, of our class. Of course when we get to the bill of rights well spend about half of the class in future lectures going through those amendments. But next week were going to talk about judicial interpretation, how do we understand what this document says. And then well jump in the legislative branch the week after that. All right, 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 little booklet. And here we see how the constitution is to be amended. So basically what this said in article five is there are two ways to amend this constitution. The first is that an amendment to the constitution passes the congress, both houses of the congress have to vote by twothirds, twothirds vote in order for the proposed management to go forward. And from there it goes forward to the states and then you see it says twothirds of the several states shall be required to approve of the proposed amendment, all right. Now there is another way to amend the constitution that has never been done and that is to have another Constitutional Convention. If you read the language of article five it describes what it would require to actually have another Constitutional Convention. Now, of course, one advantage of a Constitutional Convention is you get a lot of work done and do it more effectively in terms of changing the constitution. Of course the great danger of a Constitutional Convention is once you get those folks together, well you remember what happened in the summer of 1787 when they were supposed to amend the articles, they came up with a different document. So if you brought a lot of people the states together, theyre delegates to have a Constitutional Convention, it would be wide open. There was a movement in the 90s to actually try to form a Constitutional Convention. And that is still going on today. I have friends who from time to time will tell me about getting mail and so forth, calling for a Constitutional Convention. It would be quite a an amazing thing if that were to actually occur and it hasnt happened. So in the process of the states considering whether to ratify the constitution, there was a great deal of attention on this idea that we needed to have guaranteed rights. And it was raise again and again. New york basically said, were only going to be on board if you have a bill of rights added. That wasnt a new point but specifically that was their suggestion and really demand for going along. And so madison and others basically promised that once the congress was formed, with the new constitution, it would be the first order of business. There was some resi