Civil Liberties and Civil Rights

 For next Monday:

• Lowi, ch. 5. 

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Privacy and test cases
• Roe and Dobbs

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

• States have "powers," not "rights."

Seneca Falls

• Frederick Douglass was there
• And he was speaking out for the rights of people from China -- in 1867

Civil War Amendments

• Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. 
• 2024 CA ballot measure.
• Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
• Amendment IV, Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
• Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

War and civil rights

• Emancipation Proclamation, 15th Amendment, and Black soldiers
• Women's suffage and World War I
• Indian Citizenship Act and World War I
• World War II 
• FDR and A. Philip Randolph  (a not-very-audible audio) and the FEPC
• Desegregation of the armed forces
• The Cold War and the 1964 Civil Rights Act
• The 26th Amendment and Vietnam

• Selma the movie(at 2:00):  vs. the actual conversation between LBJ and MLK (first few minutes, skip to 6:00)

 

Civil Liberties

 For Wednesday, read

• Martin Luther King, "Letter from Birmingham Jail," https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html  
• ACLU of Southern California, "Dealing with Law Enforcement," https://www.aclusocal.org/en/dealing-law-enforcement 

A puzzle from Federalist 84: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.”

Watch for two very different meanings of dual citizenship.

1. Barron v. Baltimore (Lowi, p, 89)
2. Dual citizenship and other countries

The Due Process Clause and Selective Incorporation (p.93-94)

The Bill of Rights

Amendment I  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.  

• There were established churches in the early years.
• Lemon v. Kurtzman
• must have a secular purpose
• must have a principal or primary effect that does not advance or inhibit religion, and
• cannot foster an excessive government entanglement with religion.
• Bye, bye, Lemon v Kurtzman, Hello Kennedy v. Bremerton
• Free speech, libel. and slander: keep in mind the difference between civil and criminal cases.

Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. (Rep. Chip Roy.)

 Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• The Exclusionary Rule (p. 107) and A 1971 movie that suggests public attitudes during the Nixon era.

Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

• Mike Ehrmantraut asserts his right to a lawyer.

Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Privacy and test cases
• Roe and Dobbs

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

American Political Culture II

 

For Monday, Lowi ch. 4 and Federalist 84.

More on the fake quotation  -- an op-ed -- Bill Clinton using it 

Civil Religion, which Robert Bellah defined as "a collection of beliefs, symbols, and rituals with respect to sacred things and institutionalized in a collectivity."

"I have observed with profound sorrow the role that many religious leaders have played in urging passage of this bill, because I cannot make their activities jibe with my concept of the proper place of religious leaders in our national life … This is the second time in my lifetime an effort has been made by the clergy to make a moral question of a political issue. The other was prohibition.  We know something of the results of that."* 

BHO on religion:

But what I am suggesting is this — secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King - indeed, the majority of great reformers in American history — were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.

A famous prophecy: Tocqueville concludes volume I (p. 413) by comparing the United States and Russia: "Their point of departure is different and their paths diverse; nevertheless, each seems called by some secret design of Providence one day to hold in its hands the destinies of half the world."

From Tocqueville, pp 291-292:

In Europe almost all the disorders of society are born around the domestic hearth and not far from the nuptial bed. It is there that men come to feel scorn for natural ties and legitimate pleasures and develop a taste for disorder, restlessness of spirit, and instability of desires. Shaken by the tumultuous passions which have often troubled his own house, the European finds it hard to submit to the authority of the state's legislators. When the American returns from the turmoil of politics to the bosom of the family, he immediately finds a perfect picture of order and peace. There all his pleasures are simple and natural and his joys innocent and quiet, and as the regularity of life brings him happiness, he easily forms the habit of regulating his opinions as well as his tastes.

Whereas the European tries to escape his sorrows at home by troubling society, the American derives from his home that love of order which he carries over affairs of state.

In the United States it is not only mores that are controlled by religion, but its sway extends even over reason.

From page 603 (not on this week's list): "If anyone asks me what I think the chief cause of the extraordinary prosperity and growing power of this nation, I should answer that it is due to the superiority of their women"

Individualism

• US v. Europe
• Seeing the government as a threat -- "Don't tread on me"

Patriotism

• "Nothing is more annoying in the ordinary intercourse of life than this irritable patriotism of the American" (p. 237).
• Comparative data
• Americans view their industriousness  -- an ad!

• Putin on American exceptionalism
• Trump on American exceptionalism

Service

• Tocqueville on American democracy: "Under its sway it is not especially the things accomplished by the public administration that are great, but rather those things done without its help and beyond its sphere" (p. 244)
• Where people give: 24% goes to religion

• Where people volunteer: 33% religious

Conformity:

The Majority: "I know no country, in which, speaking generally, there is less independence of mind and true freedom of discussion than in America (Tocqueville, 254-255).

In 1829, Madison elaborated on his earlier fears about the majority: " In Monarchies the interests and happiness of all may be sacrificed to the caprice and passion of a despot: In Aristocracies, the rights and welfare of the many may be sacrificed to the pride and cupidity of a few: In Republics, the great danger is that the majority may not sufficiently respect the rights of the Minority."

Survey on free speech

Tocqueville on how slavery degrades slave0wners (347):

The white man on the right bank, forced to live by his own endeavors, has made material well being the main object of his existence; as he lives in a country offering inexhaustible resources to his industry and continual inducements to activity, his eagerness to possess things goes beyond the ordinary limits of human cupidity; tormented by a longing for wealth, he boldly follows every path to fortune that is open to him; he is equally prepared to turn into a sailor, pioneer, artisan, or cultivator; there is something wonderful in his resourcefulness and a sort of heroism in his greed for gain.

The American on the left bank scorns not only work itself but also enterprises in which work is necessary to success; living in idle ease, he has the tastes of idle men; money has lost some of its value in his eyes; he is less interested in wealth than in excitement and pleasure and expends in that direction the energy which his neighbor puts to other use; he is passionately fond of hunting and war; he enjoys all the most strenuous forms of bodily exercise; he is accustomed to the use of weapons and from childhood has been ready to risk his life in single combat.

In 1829, slaveholder Madison on African Americans: "If they had the complexion of the Serfs in the North of Europe, or of the villeins formerly in England in other terms, if they were of our own complexion, much of the difficulty would be removed. But the mere circumstance of complexion can not deprive them of the character of men."  (See the remarkable story of Paul Jennings.)

Pages 364-407: "what causes might lead to the dismemberment of the present confederation."

Lincoln Second Inaugural

Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes.

"Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether." 

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

*Senator Richard Russell, arguing against the 1964 Civil Rights Act, Congressional Record, June 10, 1964, p. 13309.

 

Second Assignment Spring 2025

 Choose one:

1,  From the Tocqueville readings we have done to date, identify a claim that is either historically inaccurate or no longer applies to the United States.  Explain.

2.  Answer any of the "Think It Through" questions in Chapter 4 of the Lowi text.

3. Chapter 4 of the Lowi text discusses civil liberties and civil rights.  Analyze a case in the past 50 years in which an effort to expand civil liberties or civil rights has clashed with public opinion.  Explain the conflict. How did advocates of the expansion try to sway public opinion?  

4.  Write on a topic of your choice, subject to my approval.

Sources on Public Opinion

• Pew Research Center
• The Polling Report
• RealClearPolling
• National Election Studies/ICPSR
• NORC
• General Social Survey
• Quinnipiac U Polling Institute
• Roper Center
• Gallup Poll
• YouGov 
• Harvard Harris

Instructions:

• Document your claims. Do not write from the top of your head.
• Essays should be double-spaced and no more than three pages long. I will not read past the third page.
• Essays should be in the form of Word documents.  Do not submit pdfs or Google docs.
• Cite your sources with endnotes in Chicago/Turabian style. Endnote pages do not count against the page limit.
• Do not use ChatGPT or any other generative AI. Misrepresenting AI-generated content as your own work is plagiarism.  It will result in a referral to the Academic Standards Committee.  
• Watch your spelling, grammar, diction, and punctuation. Errors will count against you.
• Turn in essays to  Canvas by 11:59 PM,  Monday, March 3:  note the extra time. (If you have trouble with Canvas, simply email it to me as an attached Word file.) I reserve the right to dock essays a gradepoint for one day’s lateness, a full letter grade after that.

American Political Culture

From Inside Higher Ed: "Ed Department: DEI Violates Civil Rights Law."  Office for Civil Rights declared race-based scholarships, cultural centers and even graduation ceremonies illegal.

For Wednesday:

• Abraham Lincoln, Second Inaugural Address.
• Barack Obama's keynote address at the Sojourners/Call to Renewal "Building a Covenant for a New America," June 26, 2006, https://sojo.net/articles/transcript-obamas-2006-sojournerscall-renewal-address-faith-and-politics 
• SECOND ESSAY ASSIGNED FEB 19, 

Tocqueville

Wonderful sentiment, and I couldn't agree with it more -- and I value Congressman Bacon, very much -- but ... a piece from the first weeks of the Standard: https://t.co/bMV0yliY9a cc: @jpitney @BillKristol pic.twitter.com/NIRvnjX7Lt

— Jay Nordlinger (@jaynordlinger) February 16, 2025

The moral:  always try to check the original sources of quotations.

The very first line of Tocqueville's introduction: “No novelty in the United States struck me more vividly during my stay there than equality of conditions" (p. 9)

• What did that phrase mean to Tocqueville? 
• He was not blind to slavery -- discussion on Wed.

Maintaining a democratic republic

• Circumstances – physical isolation (remember when we discuss presidency)
• Laws – the Constitution
• Mores (moeurs)–what are mores? (p. 287)

Religion

"The religious atmosphere of the country was the first thing that struck me on arrival in the United States." (p. 295 of Lawrence-Mayer ed.) 

• Recent data. 
• Wealth, religion, and the US as an outlier: graph
• Religious nationalism
• Belief in the Bible
• Ten Commandments and Bible readings -- Different versions
• Creationism  and an  international comparison  (remember when we discuss Edwards v. Aguillard)

 Civil Religion

• Winthrop's "City on a Hill"
• The Liberty Bell: "Proclaim Liberty throughout all the land unto all the inhabitants thereof" (Leviticus 25:10)
• The national motto, "In God We Trust"
• The Dollar Bill:  pyramid and eagle
• The Pledge of Allegiance (see old method of salute)
• 1777 Thanksgiving Proclamation

Lady Gaga sings the National Anthem two weeks after the January 6 insurrection.  Note that she turns and points to the Capitol flag as she sings "...our flag was still there."

Federalism

FOR NEXT MONDAY, READ:  

• Tocqueville, 9-20, 231-261, 277-315, 340-363, 525-530.

Supremacy Clause

Tenth Amendment (reserved powers) and the fraught phrase "states' rights"

• COVID and the "police power"
• Eminent domain
• Two meanings of sovereign immunity:  "state sovereign immunity (p 75) and municipal immunity  The book does not mention it, but it could directly affect you.

How the states "control" the feds: legal action

How does the federal government "control" states and localities?

GRANTS-IN-AID   IMPORTANT:  ANY TIME YOU ARE COMPARING DOLLAR AMOUNTS OVER TIME, ADJUST FOR INFLATION, EITHER BY USING CONSTANT DOLLARS OR PERCENTAGES OF GDP.

Why change over time?

Types of grants

• Categorical grants
• Block grants

Unfunded mandates

Layer cake, marble cake, mishmosh

There are 90,837 governments in the United States

Intergovernmental COVID

There are 88 cities in Los Angeles County

Fires and federalism

The recent fires

Separation of Powers and Federalism

 For Wednesday:

• David French, "The Police Power of the States to Control a Pandemic, Explained," The Dispatch, March 17, 2020, https://thedispatch.com/article/the-police-power-of-the-states-to/
• Adam Nagourney, "The L.A. Fires Expose a Web of Governments, Weak by Design," New York Times, January 19, 2025.

News:

ICE is coming.  Know your rights.

Separation of powers in the news.

What happens if a president defies a court order?

Federalist 49  

• "Veneration"
• James Ceaser: "The idea of reverence for the Constitution was a creation of The Federalist. But why did The Federalist create this doctrine of constitutional reverence?"

Veneration: 

• Norms
• The Constitution and oaths
• Citizenship
• Military oath of enlistment
• Civilian oath of office
• Judicial oath
• Presidential oath

Federalist 39 and Federalism:

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Federalist 51

Separation of Powers: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."

Divided government

Is the Founding legitimate?  

• Federalist 39:  "derives all its powers directly or indirectly from the great body of the people."
• Federalist 49: Madison quotes Jefferson: "As the people are the only legitimate fountain of power.."

Federalism:  "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."

How does the federal government "control" states and localities?

The Supremacy Clause and the Tenth Amendment

How the feds "control" the states: Grants and mandates (more on Wednesday)

How the states "control" the feds: legal action

Constitution II

 For next time: 

• Lowi, ch. 3
• Hamilton, Federalist # 39, 51.

Threat One: Federalist 1:

[A]dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

A more contemporary version of the idea.

Threats Two (War) and Three (Insurrection) 

• Federalist 8: "But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe --our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other."
• Federalist 9:  A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.

Threat Four: Faction  and Federalist 10

• What is a faction?
• "There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests."
• His definition of "democracy" and "republic."
• "[To]refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
• "In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters."
• "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary."

VENERATION: (Federalist 49): "[It] may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.

Myths:

• Madison as THE author;
• Federalist 10 as THE key;
• Democracy v. Republic;
• Allow for secession;
• For the rich only

IS IT STILL TRUE?  CONSIDER THE PASSAGE OF TIME AND COMPARISON WITH OTHER DEMOCRACIES.

CONSIDER FROM #49:  "The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people."

First Assignment, Spring 2025

Choose one:

1. Find a recent (since January 2024) speech, article, or document (e.g., court decision) that quotes or discusses the Declaration of Independence.  With close attention to word choice, analyze the purpose of this piece of writing. Who is saying what to whom, and with what motive? Carefully explain the reference to the Declaration. Why is it there? Is it accurate?

2. Find a 2025 speech, article, or document claiming that a law, bill, or action is "unconstitutional."  What is the argument for this claim?  Does it make sense?  Explain the political motives of those who support and oppose the claim.

Here are some sites where you can find speeches and documents:

• Select Nexis Uni from the Honnold database page: https://library.claremont.edu/database-directory/.  Click on the link Advanced Search from the homepage.  The Click on News in the Select a Specific Content Type drop-down. Enter transcript in the Publication Type box.  Then add your remaining search terms in the search box.
• http://congressional.proquest.com/congressional/search/basic/basicsearch -- click"advanced search," then under "document types" deselect everything except Congressional Record Daily Edition.
• http://www.whitehouse.gov
• https://bidenwhitehouse.archives.gov/administration/president-biden/
• https://www.presidency.ucsb.edu/documents 
• https://www.supremecourt.gov/oral_arguments/oral_arguments.aspx
• https://www.c-span.org/quickguide/

Instructions:

• Document your claims. Do not write from the top of your head.
• Essays should be double-spaced and no more than three pages long. I will not read past the third page.
• Essays should be in the form of Word documents.  Do not submit pdfs or Google docs.
• Cite your sources with endnotes in Chicago/Turabian style. Endnote pages do not count against the page limit.
• Do not use ChatGPT or any other generative AI. Misrepresenting AI-generated content as your own work is plagiarism.  It will result in a referral to the Academic Standards Committee.  
• Watch your spelling, grammar, diction, and punctuation. Errors will count against you.
• Turn in essays to the class Sakai dropbox by 11:59 PM,  Friday, February 14. (If you have trouble with Sakai, email it to me as an attached Word file.) I reserve the right to dock essays a gradepoint for one day’s lateness, a full letter grade after that.

Constitution I

 

Unfinished business from last time:

• Alexander Stephens, "The Cornerstone Speech," March 21, 1861, http://teachingamericanhistory.org/library/document/cornerstone-speech/

For Wednesday,

• Hamilton, Federalist # 1, 8, 9, 10 49.
• Akhil Reed Amar, "Founding Myths," ch. 2 of Myth America, ed. Kevin M. Kruse and Julian E. Zelizer (New York: Basic, 2022)  IN SAKAI RESOURCES AND CANVAS FILES.

What did you think of these model constitutional provisions?*

Backdrop

• The Boston Tea Party was not about a tax increase.
• Revolution
• Articles of Confederation
• The map:

The Constitution

The Great Compromise:

• Virginia Plan
• New Jersey Plan
• Connecticut Compromise

Three Fifths Compromise

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Akhil Amar on the Three-Fifths Clause:

The radical vice of Article I as drafted and ratified was that it gave slaveholding regions extra clout in every election as far as the eye could see - a political gift that kept giving. And growing. Unconstrained by any explicit intrastate equality norm in Article I, and emboldened by the federal [3/5] ratio, many slave states in the antebellum era skewed their congressional-district maps in favor of slaveholding regions within the state. Thus the House not only leaned south, but also within coastal slave states bent east, toward tidewater plantations that grabbed more than their fair share of seats. ... The very foundation of the Constitution’s first branch was tilted and rotten.

And not just the first branch.  The Article II electoral college sat atop the Article I base: The electors who picked the president would be apportioned according to the number of seats a state had in the House and Senate.  In turn, presidents would nominate cabinet heads, Supreme Court justices, and other Article III judges.

Consequences of the Three-Fifths Clause.  From William Lee Miller, Arguing About Slavery:

Five of the first seven presidents were slaveholders, for thirty-two of the nation’s first thirty-six years forty of its first forty-eight, fifty of its first sixty four, the nation’s president was a slaveholder. The powerful office of Speaker of the House was held by a slaveholder for twenty-eight of the nation’s first thirty-five years. The president pro tem of the Senate was virtually always a slaveholder. The majority of the cabinet members and — very important — of justices of the Supreme Court were slaveholders. The slaveholding Chief Justice Roger Taney, appointed by slaveholding President Andrew Jackson to succeed the slaveholding John Marshall, would serve all the way through the decades before the war into the years of the Civil War itself; it would be a radical change of the kind slaveholders feared when in 1863, President Lincoln would appoint the anti-slavery politician Salmon P. Chase of Ohio to succeed Taney.

Expressed powers, including trade regulation and taxation

Things that are not explicitly in the Constitution

Necessary and proper clause

Properties

• Fed 1: "government from reflection and choice [not] accident and force."
• "Writtenness"
• Minimalism (compare with other countries)
• Rigidity
• Decision rules (process, not outcome):  contrast with California
• Institutional Competition
• Federalism
• Bicameralism 
• Separation of Powers

* The source of the model