Abstract
Chapter 6 establishes constitutional thinking—an understanding of and engagement with the political ideas and values informing the Constitution’s history and the foundation of American government—as vital for the constitutional competency of career public servants. This chapter covers the three components of constitutional thinking: the Constitution itself, its design (constitutionalization), and the means by which career public servants achieve the goals of government as set forth in the Constitution’s Preamble without jeopardizing the liberty of citizens (constitutionalism). To provide a foundation for such thinking, the chapter traces the evolution of the Constitution’s guiding principles of government’s protection of individual rights and political equality derived from Locke’s political philosophy to their influence on the American founders in drafting the Articles of Confederation and the Constitution.
It seems to have been reserved to the people of this country, by their conduct and example, to decide 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 accident and force.
Publius (Alexander Hamilton), Federalist Paper #1
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- 1.
Hamilton’s purpose in Federalist Paper #1 was to make the case for changing the American political system of government. In the epigraph, Hamilton summoned his countrymen to reject the flawed Articles of Confederation and ratify the national government authorized under the new 1787 Constitution.
Clinton Rossiter, ed., The Federalist Papers: Alexander Hamilton, James Madison, John Jay (New York, NY: Mentor Books, 1961), xix.
- 2.
Joseph J. Ellis, Founding Brothers: The Revolutionary Generation, 1st vintage books ed. (New York, NY: Vintage Books, 2002), 26.
- 3.
Bernard Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton, NJ: Princeton University Press, 2005), 77.
- 4.
William A. Galston, “Realism in Political Theory,” European Journal of Political Theory 9, no. 4 (2010): 385.
- 5.
Williams, In the Beginning Was the Deed.
- 6.
Douglas F. Morgan et al., Foundations of Public Service, 2nd ed. (Armonk, NY: M.E. Sharpe, 2013).
Vera Vogelsang-Coombs, “The American Constitutional Legacy and the Deliberative Democracy Environment of New Public Governance,” in New Public Governance: A Regime-Centered Perspective, ed. Douglas F. Morgan and Brian J. Cook (Armonk, Ny: M.E. Sharpe, 2014).
- 7.
John A. Rohr, “The Constitution in Public Administration: A Report on Education,” American Review of Public Administration 16, no. 4 (Winter 1982).
- 8.
Dwight Waldo, The Enterprise of Public Administration: A Summary View (Novato, CA: Chandler & Sharp Publishers, 1980).
John A. Rohr, To Run a Constitution (Lawrence, KS: University of Kansas Press, 1986).
David H. Rosenbloom, “Reflections on Public Administration Theory and the Separation of Powers,” American Review of Public Administration 43, no. 4 (May/June 2013).
- 9.
U.S. Const. pmbl. Accessed January 27, 2014. http://www.archives.gov/exhibits/charters/constitution_transcript.html#top.
- 10.
Thomas P. Peardon, introduction to The Second Treatise of Government, by John Locke, ed. Thomas P. Peardon (Indianapolis, IN: Bobbs-Merrill, 1952).
- 11.
John Locke, §113, VIII to The Second Treatise of Government., ed. Thomas P. Peardon (1690; repr., Indianapolis, IN: Bobbs-Merrill, 1952).
- 12.
Ibid., §87, VII.
Ibid., §110, VIII.
- 13.
Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford, UK: Clarendon Press, 1958).
In “Two Concepts of Liberty,” Berlin (1958/1969) also conceives of positive liberty. Whereas negative liberty curbs authority, positive liberty involves the power and resources that enable individuals to realize their human potential. However, Berlin warns that positive liberty can lead to totalitarianism for two reasons. The first reason is that positive liberty cannot be reduced to any form of self-realization; the second reason is that positive liberty facilitates the distinction between higher and lower selves.
- 14.
Locke, §57, VI to The Second Treatise of Government, 57, VI.
- 15.
Ibid., §138, XI.
- 16.
Ibid., §149, §84, XIII.
- 17.
Ibid., XVIII, XIX.
- 18.
Leslie Lipson, The Great Issues of Politics: An Introduction to Political Science, 10th ed. (Upper Saddle River, NJ: Prentice-Hall, 1992), 234.
- 19.
“The Declaration of Independence: A Transcription,” National Archives of the United States, accessed February 17, 2014, http://www.archives.gov/exhibits/charters/declaration_transcript.html.
- 20.
Joseph J. Ellis, Founding Brothers: The Revolutionary Generation, 1st vintage books ed. (New York, NY: Vintage Books, 2002), 5.
- 21.
Merrill Jensen, “The Achievements of the Confederation,” in Major Problems in the Era of the American Revolution, 1760–1791, ed. R. D. Brown (New York, NY: D.C. Heath, 1992), 406–7, previously published in The New Nation: A History of the United States during the Confederation, 1781–1789 (New York, NY: Alfred A. Knopf, 1950).
- 22.
George W. Knepper, Ohio and Its People, bicentennial ed. (Kent, OH: Kent State University Press, 2003), 57.
According to Knepper, the achievements of the Northwest Ordinance have been overlooked because a convention was framing a new constitution for the USA at the same time.
- 23.
Yale Law School, “Northwest Ordinance: July 13, 1787,” Lillian Goldman Law Library: The Avalon Project, http://avalon.law.yale.edu/18th_century/nworder.asp.
- 24.
Ellis, Founding Brothers: The Revolutionary, 8.
- 25.
Gordon S. Wood, “Forward: State Constitution-Making in the American Revolution,” Rutgers Law Journal 24, no. 4 (Summer 1993).
- 26.
Jensen, “The Achievements of the Confederation,” in Major Problems in the Era of the American.
Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill, NC: University of North Carolina Press, 1993).
- 27.
This experience contributed, in part, to the establishment of a federal district as the nation’s permanent capital. In Federalist Paper # 43, James Madison (1788/1961, 271–278) argued that the federal government needed to have “complete authority” over the operation and security of the nation’s capital. To facilitate gaining the states’ support for the establishment of such a district, Madison proposed in Federalist #43 a compromise that was adopted in the Constitution of 1787. This compromise is found in the Constitution’s Article VI that provides for the federal government to assume the debts incurred by state governments under the Articles of Confederation. Subsequently, in 1790, the Congress passed the Residence Act (1 Stat. 130) that gave President Washington the authority to select a permanent location on the Potomac River for the District of Columbia (Library of Congress 2014).
- 28.
Quoted in Jack N. Rakove, “The Confederation: A Union Without Power,” in Major Problems in the Era of the American Revolution, 1760–1791, ed. R. D. Brown (New York, NY: D.C. Heath, 1992), 416.
- 29.
See Federalist Paper #15 written by Alexander Hamilton.
- 30.
Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Williamsburg, VA: Institute of Early American History and Culture, 1980), 122.
- 31.
Radley Balko, Rise of the Warrior Cop (New York, NY: Public Affairs (Perseus) Books, 2013).
- 32.
Ellis, Founding Brothers: The Revolutionary, 8.
- 33.
James Madison, “Federalist Paper #39,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 241.
- 34.
James Madison, “Federalist Paper #10,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 82.
- 35.
Ibid., 84.
- 36.
The founders gave the states the key power to ratify and amend the Constitution. In particular, Article V provides two ways to amend the Constitution. The first way is for each chamber of the Congress to pass an amendment by a two-thirds vote followed by ratification by three-fourths of the state legislatures. The other way is for two-thirds of the state legislatures to approve to call a constitutional convention and the amendments emerging from this convention must be ratified by three-fourths of the state legislatures. To date, only the first method has been used.
- 37.
Alexander Hamilton, “Federalist Paper #31,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 196–7.
- 38.
Ellis, Founding Brothers: The Revolutionary, 9.
- 39.
Ibid., 16.
- 40.
Lipson, The Great Issues of Politics.
- 41.
Rossiter, The Federalist Papers.
- 42.
Herbert J. Storing and Murray Dry, eds., The Anti-Federalist: An Abridgment, by Murray Dry, of The Complete Anti-Federalist: Writings by the Opponents of the Constitution (Chicago, IL: University of Chicago Press, 1985).
- 43.
Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Chicago, IL: University of Chicago Press, 1981), 5.
- 44.
Herman C. Pritchett, Constitutional Civil Liberties (Englewood Cliffs, NJ: Prentice-Hall, 1984), 5.
- 45.
Storing, What the Anti-Federalists Were, 3.
- 46.
Alexander Hamilton, “Federalist Paper #33,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 204.
- 47.
Lipson, The Great Issues of Politics, 238.
Lipson (1997, 236) identifies four principles associated with the rule of law. The first principle is that government officials can only exercise power in accordance with known laws enacted through regular constitutional procedures. The second principle is that no laws can be converted into offenses if those actions were lawful when they performed. The third principle is that no one may be convicted on any charge unless there has been a fair trial conducted in an open court. The fourth principle is that the members of the judiciary apply generalities of law to particular cases, and for this reason, justices must be independent of external pressure and control.
- 48.
James Madison, “Federalist Paper #46,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 294.
- 49.
Madison, “Federalist Paper #39,” in The Federalist Papers, 246.
- 50.
Bernard Crick, In Defence of Politics, 2nd ed. (Chicago, IL: University of Chicago Press, 1972).
- 51.
The American founders, especially Madison, were influenced by Montesquieu’s Spirit of the Laws (1748). Montesquieu formulated the idea of the separation of powers that went further than that of Locke. For Montesquieu, laws and constitutions were less significant than the spirit behind them to operate them well (Curtis, 1961, 381). Specifically, the ideal system that provided the maximum liberty for citizens was one in which one body made the law, another body executed it, and a third one ruled on it; each body contained different personnel and performed a different function. Besides the theories of Locke and Montesquieu, the American founders drew on their colonial experience to formulate the American version of the separation of powers. The functions of the governors who headed the executive branches of the colonies were distinct from those of colonial legislatures. Furthermore, colonial leaders were familiar with the device of judicial review to resolve political disputes between executives and legislative bodies. The reason is that colonial legislation could be challenged in a British court constituted by the Judicial Committee of the Privy Council (Lipson, 1997, 268).
- 52.
James Madison, “Federalist Paper #48,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 309.
- 53.
Quoted in Robert Caro, The Years of Lyndon Johnson: Master of the Senate (New York, NY: Alfred A. Knopf, 2002), 3:9.
- 54.
Crick, In Defence of Politics.
- 55.
Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York, NY: The Free Press, 1991), 29.
- 56.
Wood, “Forward: State Constitution-Making in the American,” 924.
- 57.
Storing, What the Anti-Federalists Were, 64.
- 58.
Alexander Hamilton, “Federalist Paper #84,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 513.
- 59.
Storing, What the Anti-Federalists Were, 68.
- 60.
Ibid., 70.
- 61.
David H. Rosenbloom and Joshua Chanin, “What Every Public Personnel Manager Should Know about the Constitution,” in Public Personnel Management, ed. Richard C. Kearney and Jerrell Coggburn, 6th ed. (Los Angeles, CA: Sage/CQ Press, 2016).
- 62.
U.S. Const. amend. X. Accessed January 27, 2014. http://www.archives.gov/exhibits/charters/constitution_transcript.html#top.
- 63.
Storing, What the Anti-Federalists Were.
- 64.
James Madison, “Federalist Paper #62,” in The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 380.
- 65.
Ibid., 381.
- 66.
Ibid., 382.
- 67.
Wood, “Forward: State Constitution-Making in the American,” 926.
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Vogelsang-Coombs, V. (2016). Political Philosophy, the American Constitutional Heritage, and Constitutional Thinking. In: The Political Ethics of Public Service. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-49400-9_6
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DOI: https://doi.org/10.1057/978-1-137-49400-9_6
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