Archive for the ‘Articles and Constitution’ Category

The post-war Supreme Court and Progressive reform: Child Labor

As we have discussed, the Keating-Owen Act of 1916 prohibited companies that engaged in interstate commerce from selling goods produced by children under the age of sixteen (remember, Congress only had the ability to regulate INTERSTATE commerce under the Constitution). Later, father sued “on behalf of his sons” that this law was unconstitutional and deprived them of the chance to work. The Supreme Court held that Congress did not have the power to regulate child labor in this manner. (By the way, how do you think the father was able to sue all the way to the Supreme Court if he worked in a textile mill?) There is a happy ending, however– the decision in Dagenhart was later overturned itself in 1941 in the case of US V. Darby Lumber Co.

This is from an excellent review written by Sharron Solomon-McCarthy that I found at Yale University’s website (http://www.yale.edu/ynhti/curriculum/units/2004/1/04.01.08.x.html). I have excerpted the part here that applies to chapter 32. Please note the quotation by the manufacturer that I have boldfaced as an indication of business attitudes resentful of restrictions on child labor.

….Child labor was becoming increasingly more significant due to the economy. In the early 1900’s a social movement was established to protest child labor. This assembly was called the reformers. They had a platform that needed to be addressed by the national government. Up until this point the Supreme Court took a laissez-faire approach.

Facing opposition by employers many felt that social reformers were unable to see how child labor was the driving force of the United States economy. Employers who favored child labor suggested that it added to the moral fiber of the child by instilling a value system of work ethic.

The president of Merchants Woolen Company, Charles Harding stated: “There is a certain class of labor in mills where there is not as much muscular exercise required as a child would put forth in play, and a child can do it about as well as a grown person…There is such thing as too much education for working people sometimes. I have seen cases where young people are spoiled for labor by…too much refinement.”

The social reformers focused on welfare of the child and the abolishment of child labor. The first organized group was formed in1904 it was known as The National Child Labor Committee (NCLC). This committee consisted of politicians, social workers and citizens who contested child labor. Two of the most renowned reformers were Jane Addams and Lewis Hine.

Jane Addams played a prominent part in the formation of the National Progressive Movement. In 1912, when Theodore Roosevelt ran for President of the United States, Addams empathically declared her support for his progressive ideas. As a pioneer of the progressive movement, Jane Addams campaigned for new laws to support the rights of children. As the founder of Hull House in Chicago, Illinois she was able to provide a platform where children and others could come to seek assistance from the dreadful environment which surrounding them each day. Jane believed that they way to change the social atmosphere in the United States was to lobby the government for laws that would promote better education for children.

In 1907 the NCLC was granted a charter from Congress. A year later the committee hired Lewis Hine. He was a teacher who was hired to research the ills of the child labor industry. For several years following, Hine traveled and photographed pictures of the exploitation of children in the work force. Later these pictures were published and seen by many. The impact the pictures had on America was unspeakable. The pictures unfolded a story that demonstrated violations against children in the most revolting way. It was truly astounding.

Two years later the Bureau of Labor Statistics found that contradictory to past reports, more children were employed in the Southern states than up North. Many of these children were receiving an insignificant amount of education. If children attended school then they would lose their jobs, children at that time children did not want to face the punishment they would receive from their families.

As a result of this and the backlash of Hine’s pictures, states started to pass laws restricting the age at which children could work. Nonetheless, The Supreme Court was not taking a stand on this issue.

It was not until 1916, that we see the involvement of the Supreme Court. During this year Congress passed the first child labor bill, Keating-Owen Act. This act banned the sale of any article produced by child labor (factory, cannery, and mine) and it regulated the number of hours a child could work. The Keating-Owen Act was passed in 1916 under the Woodrow Wilson’s administration. Many progressives and republicans

embraced his efforts. Two years later the Supreme Court declared the Keating-Owen Act unconstitutional. The Supreme Court stated that on legal grounds Congress was using its power to go beyond its right to regulate interstate trade.

After the abolishment of the first child labor bill, the Keating-Owen Act there was a significant amount of tension that existed between the Congress and the Supreme Court.

Did the power rest in the Congress or did the Supreme Court act as a superior being?

Hammer v. Dagenhart

Argued April 15, 1918 and decided on June 3, 1918 was the next case in the forefront of child labor laws. This case was filed initially in North Carolina in the United States District Court. It was brought to the court by a father, Roland Dagenhart filing on behalf of his two sons Reuben and John who were employed on a cotton mill in Charlotte, North Carolina. Both of them were under sixteen years of age. Dagenhart’s law suit claimed that Congress had violated his sons’ freedom to work.

In response to Dagenhart’s claim, the United States District Court filed a response that stated the Dagenhart’s bill directly violated child labor laws that dealt with commerce from state to state as addressed two years prior by the Keating-Owen Act.

The first decision upheld by the District Court stated that the bill was unconstitutional. The District Court stated that Congress had violated numerous laws according to the Constitution. The violations were as follows the Commerce Clause, the Fifth Amendment and the Tenth Amendment to the Constitution.

According to the District Court, Congress claims violated the Commere Act which is found in Article 1, Section 8 clause 3 which states “the congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Secondly, they saw a breach of the Tenth Amendment which asserts “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.”

The court’s last reservation claimed that Congress had violated the Fifth Amendment according to due process. Which clearly states, “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 offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor shall be deprived of life, liberty, or property, without due process of; law; nor shall private property be taken for public use, without just compensation.”

Many reformers and others were disheartened by the decision. As a result, John Davis and attorney, W.C. Hammer appealed the former decision therefore seeking assistance from the United States Supreme Court. Congress felt that they had a strong backing and compelling evidence based on the Constitution to support their claim. One of their key claims was that Congress has the power to regulate goods created by child labor because there was no one rule that blanketed all the states.

The Supreme Court was faced with answering the underlying question,does Congress have the right to police goods that are sold between states that were constructed by children under sixteen years old?

During this legal preceding there were nine justices in total, four of whom were Democrats and the five remaining were Republicans. The names of these Justices were Edward D. White, Joseph McKenna, Oliver W. Holmes Jr., Mahlon Pitney, James C. McReynolds, Louis Brandeis, John Clarke, Willis Van Devanter and William R. Day.

The final decision of the Supreme Court was given by William R. Day. The Court saw this act as unconstitutional. The decision recognized by the court stated Congress had stepped outside of their boundaries and that Congress misconstrued the interpretation of the Commerce Clause which was upheld in the Keating-Owen Act. The Supreme Court argued that in spite of children working in factories and canniers to produce goods that are exchanged between the states does not technically fit the confines of commerce. In view of that fact the Congress has the power to regulate trade but in this case, commerce is not the question when talking about the actual trade process because it does not involve the physical harm of children.

Open to various interpretations the Commerce Clause can be argued that commerce is defined not by the manufacturing, the making of products locally but by the shipment, the actual transportation of the manufactured goods which are shipped interstate. As stated in the previous case of Gibbons v. Ogden the power to regulate commerce is the power “to prescribe the rule by which commerce is governed.”

To support their decision, Justice Day refers back to prior court cases such as Lackawanna & Western R.R. Co. v. Yurkonis, Kidd v. Pearson and New York v. Miln. All three of these cases were focused around the Commerce Clause. In Lackawanna & Western R.R. Co. the court established that coal mining is not defined under the terms of commerce. In the later two cases the same commerce clause cannot be redefined to include the regulation of goods made by child labor as identified by individual states.

Regardless of Justice Day and the majority of the ruling there was a dissenting opinion. This difference of opinion came from Justice Holmes, Justice McKenna, Justice Brandeis and Justice Clarke all of whom concurred. Holmes argued that Congress acted on the basis that it has the right under the Constitution to disallow certain goods to be traded also known as prohibition. Hence, prohibition includes the use of child labor as represented by the Keating-Owen Act. Also, he disputed that according to the Constitution the Congress falls under the umbrella of being protected by the federal government to monitor commerce as identified in Article 1, Section 8 of the Constitution.

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Kentucky Resolutions

As you read, consider:

1. Who was the author of these resolutions? What is the ultimate constitutional claim that the author is attempting to advance? What does this document say about nullification?

2. What is the “compact theory?”

3. What federal actions were being protested in these resolutions?
The Kentucky Resolutions of 1789
1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

3. Resolved, The it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “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”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “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”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5. Resolved. That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act intituled “An Act concerning aliens” is contrary to the Constitution, one amendment to which has provided that “no person shalt be deprived of liberty without due progress of law”; and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, 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;” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws from the courts, to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.

7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.

8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States: to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly, to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no ramparts now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal; that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits, Let him say what the government is, if it be not a tyranny, which the men of our choice have con erred on our President, and the President of our choice has assented to, and accepted over the friendly stranger to whom the mild spirit of our country and its law have pledged hospitality and protection: that the men of our choice have more respected the bare suspicion of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its CO-States for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, weather general or particular. And that the rights and liberties of their CO-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the CO-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.

9th. Resolved, That the said committee be authorized to communicate by writing or personal conference, at any times or places whatever, with any person or persons who may be appointed by any one or more CO-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.

Kentucky Resolution of 1799

RESOLUTIONS IN GENERAL ASSEMBLY

THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted. To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended be as unnecessary as unavailing.

We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument. Our opinions of those alarming measures of the general government, together with our reasons for those opinions, were detailed with decency and with temper, and submitted to the discussion and judgment of our fellow citizens throughout the Union. Whether the decency and temper have been observed in the answers of most of those states who have denied or attempted to obviate the great truths contained in those resolutions, we have now only to submit to a candid world. Faithful to the true principles of the federal union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation.

Least however the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced and attempted to be maintained by the said answers, or least those of our fellow citizens throughout the Union, who so widely differ from us on those important subjects, should be deluded by the expectation, that we shall be deterred from what we conceive our duty; or shrink from the principles contained in those resolutions: therefore.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.

Approved December 3rd, 1799.

Reminders and assignment for Sept 27

While I am at the funeral, you will have a sub. She is a dear friend of mine, and I know you will treat her like a princess. Make sure you prepare for these two quizzes!

1. You will take a combined 9-10 terms check first, and then grade it. Turn those in.

2. You will then take your MC check over your homework. You will grade that and turn it in.

You will then do this assignment, which can all be done online. Click here to download the assignment: Federalist 51 Document Analysis– Hyperlinks are provided within the document.

If you need to, search for the APPARTS form you will need on the blog, and download a copy. I COULD put it here, but you need to learn how to do this. Keep that copy on your hard drive.

You may write in it in word, but SAVE AS Federalist #51, so that you keep the original. This is due Monday!!!

Excerpt from Bailyn on Power

By historian Bernard Bailyn.

Excerpt: The Ideological Origins of the American Revolution, Chapter 3, from pp 55-69

The theory of politics that emerges from the political literature of the pre-Revolutionary years rests on the belief that what lay behind every political scene, the ultimate explanation of every political controversy, was the disposition of power. The acuteness of the colonists’ sense of this problem is, for the twentieth century reader, one of the most striking things to be found in the eighteenth century literature: it serves to link the Revolutionary generation to our own.

The colonists had no doubt about what power was and about its central, dynamic role in any political system. Power was not to be confused, James Otis pointed out, with unspecified physical capacity—with the “mere physical quality” described in physics. The essence of what they mean by power was perhaps best revealed inadvertently by John Adams as he groped for words in drafting his Dissertation on the Canon and Feudal Law.  Twice choosing and then rejecting the word “power,” he finally selected as the specification of thought he had in mind “dominion,” and in this association of words the whole generation concurred. “Power” to them meant the dominion of some men over others, the human control of life: ultimately force, compulsion….

Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond its legitimate boundaries. In expressing this central thought, which explained more of politics, past and present, to them than any other single consideration, the writers of the time outdid themselves in verbal ingenuity. All sorts of metaphors, similes, and analogies were used to express this view of power.  Power, it was said over and over again, has “an encroaching nature”; “… if at first it meets with no control [it] creeps by degrees and quick subdues the whole.” Sometimes the image is of the human hand, “the hand of power,” reaching out to clutch and to seize: power is “grasping” and “tenacious” in its nature; “what it seizes it will retain.” Sometimes power “is like the ocean, not easily admitting limits to be fixed in it.” Sometimes it is “like a cancer, it eats faster and faster every hour.”….

What gave transcendent importance to the aggressiveness of power was the fact that its natural prey, its necessary victim, was liberty, or law, or right. The public world these writers saw was divided into distinct, contrasting, and innately antagonistic spheres: the sphere of power and the sphere of liberty or right. The one was brutal, ceaselessly active, and heedless; the other was delicate, passive, and sensitive. The one must be resisted, the other defended, and the two must never be confused….

Not that power was in itself—in some metaphysical sense—evil. It was natural in its origins, and necessary. It had legitimate foundations “in compact and mutual consent”—in those covenants among men by which, as a result of restrictions voluntarily accepted by all for the good of all, society emerges from a state of nature and creates government to serve as trustee and custodian….

Belief that  a proper system of laws and institutions should be should be suffused with, should express , essences and fundamentals– moral rights, reason, justice– had never been absent from English notions of the constitution….[I]f the ostensible purpose of all government was the good of the people, the particular goal of the English constitution–“its end, its use, its designation, drift, and scope”– was known by all and declared by all to be the attainment of liberty. This was its particular grandeur and excellence; it was for this that it should be prized….

The Articles of Confederation

A little background: http://www.loc.gov/rr/program/bib/ourdocs/articles.html

The actual Articles, from the Avalon Project at Yale: http://avalon.law.yale.edu/18th_century/artconf.asp

Questions chapter 9

Questions- Chapter 9: The Confederation and the Constitution
Make sure you still know the definitions and significance of the terms. You can include them in your answers if you need to, however.

By the way, notice the boldfaced words in the questions below. They will be relevant to a DBQ handed out later.

1. What was the effect of the exodus of the Loyalists on American society after the war?
2. How exactly did Revolutionary rhetoric cause social upheaval?
3. What were the limits of Republican idealism when it came to disadvantaged social and demographic groups in American society?
4. What concept provided a counterweight or balance for the excesses of individualism in early American political thought?
5. How did the theory of “republican motherhood” affect women’s lives and expectations regarding their role in society?
6. What were the similar features of the many state constitutions? How did these influence the US Constitution as well as the debate over it?
7. How was “economic democracy” encouraged by specific actions of state governments in the early post-war years?
8. What economic benefits did America gain from independence?
9. Explain the economic disadvantages and dangers facing the new republic.
10. How did the economic situation (look at your answers to 7, 8, and 9) in 1786 influence the political situation as we attempted to establish a new government?
11. What was ironic about the use of the term “Union” (as on p. 180) to describe the American political system? (Look back on pages 179-180 and scan for mentions of unity or related concepts such as unanimity as well as the opposite concept of disunity as you consider your answer.) Consider HISTORICALLY the ability of the colonies to be unified.
12. Why were the executive and legislative branches so weak under the Articles of Confederation? Give specific reasons.
13. Explain the major weaknesses of the Articles, and what impact these weaknesses had. What is meant by calling the Articles “anemic” on p. 182?
14. What were the major achievements of the Confederation government?
15. What four foreign powers challenged American sovereignty the most in the post-war years? Why, and HOW?
16. What were the specific causes of Shays’ Rebellion? What effects did this uprising have politically? What was the significance?
17. What did Jefferson mean by the term “democratic despotism” on p. 185? What is the relation of this term to the term “mobocracy?”
18. Summarize the economic arguments of “paper moneyites” versus “sound money” proponents? What is the danger of paper currency? (You may need to research this)
19. Explain how economic instability and “unbridled republicanism” led to fears of “anarchy.” How did this influence the writing of the Constitution?
20. What were the common characteristics of those “demigods” who gathered eventually to “revise” the Articles? What were their three main goals?
21. How did enemies of America as an independent nation also ironically serve as “Founding Fathers,” according to p 187?
22. Explain each of the important political compromises that made up the Constitution.
23. What was the role of direct versus indirect voting in choosing government officials at the federal level?
24. What were the two great principles of the political theory of republicanism mentioned on p. 190?
25. Describe the differing political views between the Federalists and Anti-Federalists. What kinds of people tended to either camp?
26. In general, how did the most radical of the Revolutionary generation respond to the Constitution, and why?
27. Why, specifically, did four states in particular resist approving the new Constitution?
28. What was the purpose of the essays known as The Federalist?
29. Explain the statement on p. 195 that “[t]he minority had triumphed- twice.” In particular consider the statement elsewhere on that page that “[t]he majority had not spoken.”
30. Explain, specifically, how the Constitution attempted to balance the needs for liberty (personal freedom) and order (security and protection).

Chapter 7 questions

Due MONDAY September 9.

Handwritten, and written to demonstrate analysis and depth of reasoning. Remember, this is also writing practice.

AS YOU READ, CONSIDER HOW THE EVENTS IN THIS CHAPTER ARE AFFECTED BY THE TENSION BETWEEN TRADITIONAL AMERICAN PREFERENCE FOR INDEPENDENT ACTION VERSUS THE NEED FOR UNITY.

1. How and why did the British victory in the French and Indian War change the expectations between the British and colonists? What factors led the colonists to be shocked by this change in British attitudes?

2. What did “republicans” in the 18th century believe about government as well as the requirements for a just, stable society? What did they consider to be examples of just societies, and why? What did “Radical whigs” fear, and how were they different from “republicans?”

WE HAVE ALREADY DISCUSSED MERCANTILISM, SO I WILL ASSUME THAT IF THERE IS ANYTHING ABOUT THE BASICS YOU WILL ASK RATHER THAN FORCING YOU TO DO QUESTIONS OVER INFO IN YOUR NOTES. CONSIDER THE IMPACT ON ECONOMIC INITIATIVE BY THE NAVIGATION LAWS, ETC. YOU WILL HAVE A PRACTICE MC QUIZ OF 4-5 QUESTIONS OVER MERCANTILISM ON WED/THURSDAY.

3. How did the appointment of George Grenville initiate a new relationship between Britain and her colonies?

4. Chart each major law, what its purpose was, and what the colonial protest method was in response to each: Stamp Act, Sugar Act, Declaratory Act, Townshend Acts.

5. Why did the colonists interpret these laws as threats? Why specifically did colonists reject the Stamp Act on principle? How did the British answer colonial objections?

6. Which laws were repealed, and how did the colonists achieve this, given their lack of representation in Parliament?

7. What 4-5 specific actions were taken by the colonists that helped unite them in their protests against the Stamp Act?

8. How did the British respond to colonial protests against the Townshend Acts? Why did the colonists seem to take the Townshend Acts less seriously than the Stamp Act (and do you think that was exactly the British plan all along?)?

9. Why did the Boston Massacre occur?

10. Why did the British repeal the Townshend Acts? Why was the tea tax retained from the Townshend Acts?

11. Why, specifically, didn’t the situation calm down after Lord North backed down on them? How did the system of colonial communication and propaganda work?

12. What was the purpose of the Tea Act of 1773 (it’s not named as such in your text, but it’s described on p. 135 under “Tea Brewing in Boston”)? Describe the protests in various coastal cities, culminating with Boston?

13. What were the specific laws passed by the British in response to the Tea Party in Boston? What were these called by the British, and what did the Americans call them? What role did the Quebec Act play in this?

14.What responses did the colonists take to these laws, especially those that were meant to improve unified response by the colonists?

15. What actions did the First Continental Congress take? Include dates where possible.

16. How did Parliament respond to the petitions from the Continental Congress?

17. Create a chart showing the relative strengths and weaknesses of the British vis-à-vis the impending War for Independence with the colonies.

18. Create a chart showing the relative strengths and weaknesses of the colonies vis-à-vis the impending War for Independence with the British.