Midterm exam and sketches of expected answers
PS 3103 Constitutional Politics in the United States
October 25, 2002
In each of Sections A, B, and C below, follow the instructions given. Please indicate on the
cover of your test booklet which questions you have chosen to answer in each of sections I
and II. If you answer more than the required number of questions in either of those two
sections, only the lowest-numbered questions in that section will be graded. You must hand in
your answers by 3:00.
Please help maintain the graders' sunny dispositions by skipping lines and writing on only one
side of each page in your test booklet. Extra test booklets are freely available.
Section A. All students are to answer the following question with a very brief discussion.
You should be able to do so in about two sentences.
1. According to Keith Whittington, what is the difference between constitutional
construction and the judicial interpretation of constitutional provisions?
Interpretation: Relies on legal norms
Construction: Considers fundamental political principles
Interpretation: Assumes ratification by judicial recognition of results
Construction: Structures future political practice
Interpretation: Develops in evolutionary fashion
Construction: Occurs at moments of unsettled understanding
Interpretation: Searches for discoverable meaning
Construction: Develops in interstices of discoverable textual meaning
Interpretation: Specifies rules for government action
Construction: Provides standards for political conduct
Section B. Answer any two of questions (2) through (4). You should be able to answer
each question in approximately three sentences. Within that limitation, be as specific as
2. It is often said that the U.S. Constitution acquired legitimacy, and thus the allegiance of
citizens and politicians, because it represented the deliberate decision of the people to
grant certain powers to the government. Briefly give arguments that would both support
and challenge this claim.
Support: The Constitution was ratified through a well-defined and well-understood process of
grass-roots conventions in each state, convened for only this purpose the purest practical
expression of popular sovereignty. When the process was done and ratification had succeeded,
its opponents acquiesced in their loss and agreed to accept and participate in the new system.
Challenge: The new Constitution clearly violated the Articles of Confederation, an agreement to
which all states had already assented, and which provided that amendments required unanimous
approval and that the Confederation was to be "perpetual." The 1787 Constitution was more
centralized than most people would have preferred, due to the Federalists' manipulation of the
writing and ratification process. In particular, anti-Federalists were vastly underrepresented at
the Philadelphia Convention.
3. How did the compromises on slavery made by the framers affect the U.S. Constitution?
(You may write in terms either of the basic nature of the Constitution, or of historical
developments in Constitutional politics over the following decades.)
This could be an essay primarily about Thurgood Marshall's essay, the Wiecek paper, or the
Bestor paper. Slavery compromises contradicted the ideal of "rule of law," as well as the liberty
ideal of the Revolution, and hence damaged the coherence and legitimacy of the Constitution.
Many of the most important political conflicts of the next 70 years were played out against these
constitutional provisions. Overall, in particular, slavery was argued out in terms of federal
authority over the territories and the enforcement of the Constitution's fugitive slave provisions,
rather than in terms of the moral, social, or economic implications of slavery. Repeated crises
over these issues resulted in the successive negotiation of difficult and complicated
compromises attempting to spell out and stay within the constitutional "compact," but ultimately
to no avail.
4. The impeachment of Supreme Court justice Samuel Chase in 1804 resulted in new
constitutional constructions concerning the proper role of the judicial branch in the
political system. Mention the most important of these changes. What qualifies this as an
instance of "construction?"
The judicial branch was to be independent of the legislative at least to the extent that
impeachment was not permitted based on mere partisan disagreement. It was independent of the
executive in that it was improper for the executive to control membership in the judiciary.
Judges, however, were to perform as referees in the courtroom, and it was inappropriate for them
to mix their political views with their official duties. This was "construction" in that it emerged
from the political process of impeachment, at a time when there was a lack of widespread
agreement ("unsettled understanding") about the proper place of the judiciary in the separation
of powers, and of the role of judges. It filled in these gaps in the constitution, and structured
future political practice.
Section C. Answer any two of questions (5) through (7). Same instructions as in Section I.
5. Give one feature of the rules or structures pertaining to the process of presidential
elections that resulted from each of the following processes of changing or elaborating the
meaning of the constitution: (a) formal constitutional amendment; (b) state legislative
statutes (law); (c) constitutional construction. For item (c), briefly explain why this was
an instance of construction.
(a) formal constitutional amendment: the 12th amendment provided for separate electoral
college ballots for president and vice-president
(b) state legislative statutes (law): state legislatures decided their methods for choosing
Electors; in the early days, most chose Electors directly rather than holding elections, and even
later when most switched to elections, they chose the general ticket system. None of these
features was included in the Constitution or even anticipated by the framers.
(c) constitutional construction. For item (c), briefly explain why this was an instance of
construction. Two good examples: (i) the organization of political parties and their use to
nominate presidential and vice presidential candidates; (ii) the designation of vice-presidential
candidates even in the earliest elections. These were constructions in that they filled in gaps
between the constitutionally defined process of presidential election and the felt needs of
political activists in the early republics. These inventions became a central part of the structure
and rules of the political system ("address constitutional subject matter") and "structured future
political practice," requiring no sort of ratification by courts or elections.
6. Give one principle of the framers' "republican ideal" and one principle of the "democratic
ideal" that emerged in the late 1820s and 1830s that contradict one another, and explain
why. How, if at all, did your two principles manifest themselves at any time in the rules
of the "presidential game?"
Some possibilities: (1) Parties are bad; parties are necessary for democratic government. (2)
Presidential candidates should be chosen based solely on republican virtue, and should not seek
office; candidates should seek the nomination of a major political party, and should make their
issue positions clear. (3) Selection of presidents should be accompished by a successive
process of elite decision-making, perhaps starting off with an election in which free white
property-holding males may participate; selection of presidents is a matter for the people to
decide through conventions, campaigns, and elections.
7. What major constitutional issues faced the United States during Reconstruction?
(1) how to reintegrate the seceded states; (2) how to integrate the freed slaves into society; (3)
whether president or Congress should be deciding these things.