American politics and the American political system did not suddenly appear. It has evolved through a unique and complex convergence of countless civic actors, political ideas, and significant events. To grasp the complexities of our unique political system, it is important to understand the roots of our polity, how it has emerged, and some of the major theories concerning its development. This article begins with discussion of the major elements that influenced the founders of our republic. Those influences include the early colonial experience, the British legal system, natural rights philosophy, classical republicanism, and religious teachings. Next, the article examines the sequence of events and underlying factors leading to the American Revolution, the Declaration of Independence, and the Articles of Confederation. Attention finally turns to the United States Constitution and its framers, underlying concepts, theories, and remarkable features.
- Major Influences on American Constitutional Development
- Influence of British Legal History
- Influence of Natural Rights Philosophers
- Influence of the Liberal Arts and Age of Enlightenment
- Influence of Classical Republicanism
- Influence of Judeo-Christian Teachings
- Movement Toward American Independence
- Salutary Neglect
- First Continental Congress
- Second Continental Congress
- The Declaration of Independence
- Colonies Transform Into States
- Articles of Confederation
- The Constitution of the United States
- Road to the Constitution
- The Constitutional Convention
- The Framers
- The Convention Organization
- The Challenges
- Forging the New Constitution
- The Issue of Representation
- The Issue of Slavery
- Economic Issues
- Basic Features of the Constitution
- Separation of Powers
- Checks and Balances
- Supremacy of National Laws
- Ratifying the Constitution
- Anti-Federalists and Federalists Debate
- The Federalists
- The Constitution: An Elite Document or a Bundle of Compromises?
- The New Government and The Bill of Rights
Major Influences on American Constitutional Development
Influence of British Legal History
The American political system was obviously influenced by British legal history. The government of Great Britain is not based on a single written constitution. Rather, the British legal system is composed of an amalgam of political documents, common law, customs, and acts of the Parliament. The most influential documents in the development of British government are the Magna Carta (1215), the Petition of Rights (1628), and the English Bill of Rights (1689). The following is a brief description of each of these landmark documents and how they influenced subsequent American political documents.
The Magna Carta (1215), or Great Charter, is the foundation on which modern British government is built. Originally, England was ruled by an absolute monarch, one who had virtually unrestrained control over his or her subjects. In 1215, the feudal barons forced King John to concede a list of rights to the English nobility. The Magna Carta’s 63 chapters are provisions calling for limited government and the preservation of certain personal and property rights. Chapter 39, for example, stipulates, “No free man shall be taken or imprisoned . . . except by the lawful judgment of his equals or [and] by the law of the land.” The clause “judgment of his peers” refers to trial by jury, the right later guaranteed by the U.S. Constitution’s Sixth Amendment, and the idiom law of the land becomes the foundation for the concept of due process of law, a phrase later found in the U.S. Constitution’s Fifth and Fourteen Amendments.
Monarchial concessions were further made in 1628, when the Parliament forced King Charles I to sign the Petition of Rights. This document contains a list of grievances that parallels many of the complaints chronicled in the Declaration of Independence and an assortment of rights contained in the U.S. Constitution (1787). For example, the Petition of Rights declares that the monarch may not (a) arrest legislators when attending Parliament (Article I, Section 6.1 of the U.S. Constitution provides a similar immunity for members of Congress); (b) force civilians to house and feed soldiers (the Third Amendment of the U.S. Constitution contains a similar proscription); (c) levy taxes without approval from the House of Commons (Article I, Section 7.1 likewise mandates that revenue bills originate in the House of Representatives or a lower house); (d) incarcerate citizens without showing just cause (Article I, Section 9.2 of the U.S. Constitution limits the suspension of the writ of habeas corpus); (e) charge persons with a crime without a grand jury trial (this is echoed in the Fifth Amendment of the U.S. Constitution); or (f) take away private property without providing just compensation (this is similarly found in the Fifth Amendment of the U.S. Constitution).
The most far-reaching limitations on monarchical rule, however, came with the English Bill of Rights. The Glorious Revolution of 1688, a bloodless revolt by Parliament against the monarchy, culminated in 1689 when the newly crowned royalty, William III and Mary, agreed to recognize 13 specified civil rights. Those enumerated rights, which bear striking resemblance to ones found in the U.S. Constitution, include the right of British subjects (a) to petition the monarch for a redress of grievances (a similar provision is found in the First Amendment of the U.S. Constitution); (b) to be protected against excessive bail and fines and cruel and unusual punishment (guarantees also found in the Eighth Amendment of the U.S. Constitution); (c) to a fair and speedy trial (provisions likewise found in the Sixth Amendment of the U.S. Constitution); (d) to free speech and debate in Parliament (a similar guarantee is afforded members of Congress in Article I, Section 6.1 of the U.S. Constitution); (e) to have Parliament approve the keeping of a standing army (Article I, Section 8.12 of the U.S. Constitution gives Congress financial control over the armed forces); and (f) the right of certain subjects (Protestants) to keep and bear arms (a similar provision is found in the Second Amendment of the U.S. Constitution).
Influence of Natural Rights Philosophers
A critical element of the British and American political experiences was the influence of the so-called natural rights philosophy that evolved during the late 17th and early 18th centuries, particularly the theories advanced by Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. The common belief among these thinkers was that humans once lived in a state of nature where they had complete, unbridled freedom. However, this state of nature was fraught with peril and uncertainty, because there was nothing in the state of nature to protect their lives, property, or liberty. As Hobbes asserted in Leviathan, life in the state of nature was “solitary, poor, nasty, brutish and short” (1909– 1914, para. 9). To survive, the people entered into a social contract or compact with the sovereign. In exchange for security, they agreed to relinquish certain freedoms but never their natural or unalienable rights. For Hobbes, the fundamental natural right was the right to life. For Locke, natural rights included freedoms of expression and, most important, ownership of property. And Rousseau believed the social contract required subjects to trade unrestrained liberties for civil liberties, or freedoms within the law. Each of these philosophers realized the necessity of balancing liberty with authority or security. The difference among theories, of course, was a question of degree.
The natural rights document that doubtless had the greatest impact on the American political experience was John Locke’s Two Treatises on Government (1689/1764). Written to justify the Glorious Revolution of 1688 and the overthrow of King James II of England, Locke’s disquisition sets forth many ideas that were read by American colonists and served as blueprints for the American Revolution. Among other things, Locke posits that people are created equal and possess the rights to liberty and property. Locke further maintains that humans are entitled to pursue their own potentials in life. And should the sovereign fail to protect these “unalienable rights,” Locke asserts, the people have the right to overthrow the sovereign. As will be seen, these phrases bear striking resemblance to those echoed by Thomas Jefferson in the American Declaration of Independence of 1776. The U.S. Constitution’s (1787) Fifth and Fourteenth Amendments also stipulate that no person shall be deprived of “life, liberty, or property, without due process.” Finally, the Ninth Amendment carries natural rights overtones, declaring, “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Influence of the Liberal Arts and Age of Enlightenment
Our nation’s founders were no doubt influenced by their education. Most of the delegates who signed the Declaration of Independence and drafted the Constitution were relatively well educated. Virtually all first learned to read in the home, most received some formal education, and many attended college at a relatively young age. Approximately 30 of the 55 delegates to the Constitutional Convention were college graduates. The centerpiece of the 18th century college education was the liberal arts curriculum, which was generally composed of what was termed the trivium (grammar, rhetoric, and logic) and quadrivium (arithmetic, geometry, music, and astronomy). Thus, the emphasis was on acquiring intellectual and cultural knowledge, as opposed to learning technical skills or a trade.
This too was the advent of the Age of Enlightenment, a period when intellectuals throughout Europe and the American colonies yearned to comprehend human nature and sought to improve life through social and political reforms. Among the leaders of this intellectual movement was Sir Francis Bacon, an English scholar known for his theory of scientific discovery. Bacon posited that it was possible to observe nature, discover universal laws, and apply them to ameliorate society’s problems. Many of the Constitution’s framers were avid readers and were quite familiar with Bacon and other great thinkers of the period, such as David Hume, Edmund Burke, and Baron de Montesquieu. Even George Washington, who possessed but 5 years of formal schooling, collected books and was familiar with the classics. Perhaps Jefferson said it best: “I cannot live without books” (Cappon, 1987, p. 443).
Influence of Classical Republicanism
The American founders were also influenced by classical republicanism: ancient Greek and Roman political philosophy. The central tenet of classical republicanism is that governmental leaders should put the public interest above private desires and promote the common good through civic virtue. Civic virtue entails such ideals as individual accountability, responsibility, integrity, compassion, fairness, generosity, courage, self-control, and moderation. Records reveal that many of the leaders who forged the Declaration of Independence and drafted the Constitution were quite familiar with ancient Greek and Roman culture and history. Among the ancient Greek thinkers and orators they admired were Socrates, Plato, Aristotle, Sophocles, Plutarch, Thucydides, Polybius, Demosthenes, and Homer. The framers appeared equally enamored of the writings of Cicero, Horace, Justinian, and Virgil from the Roman Republic (circa 500 to 27 BCE). This admiration is well demonstrated by the fact that both anti-Federalist and Federalist pamphlets (see the following discussion) were published under the pseudonyms of Roman heroes, such as Brutus, Centinel, Cato, and Publius. Personal correspondence among the American founders, particularly Thomas Jefferson, John Adams, Alexander Hamilton, and James Madison, also reveals frequent references to these early Greek and Roman thinkers. And on relinquishing the presidency, George Washington was often referred to as America’s Cincinnatus—a popular Roman consul who voluntarily gave up power to return to the plow.
Influence of Judeo-Christian Teachings
Finally, there is clear evidence our early American leaders were profoundly influenced by Judeo-Christian teachings. At least 9 of the original 13 colonies had established state churches prior to the Declaration of Independence. Many of the 18th-century leaders learned to read from the Bible and were versed in the scriptures. Colonial colleges often required students to translate Biblical passages into Latin and Greek as a condition of admission. Delegates to the Constitutional Convention frequently quoted the Ten Commandments, the Sermon on the Mount, and other passages from the Old and New Testaments. Early state constitutions contained references to the Deity. The Declaration of Independence speaks of Nature’s God and rights endowed by the Creator. The Liberty Bell’s inscription, “Proclaim Liberty throughout the Land,” was a passage from the book of Leviticus in the Old Testament. And Benjamin Franklin (1787) observed, “God governs in the affairs of men” (para. 2).
Movement Toward American Independence
Nearly 170 years transpired between the founding of Jamestown and American independence. During that span, Great Britain and the American colonies maintained a symbiotic relationship. As noted above, the colonies supplied the mother country with raw materials and provided a market for goods manufactured in England. The colonies benefited from a common language, uniform currency, and military protection from the French, Spanish, Native Americans, and pirates on the high seas. But the 3,000 miles separating the colonies from the mother country created communication problems. It became impossible for the Crown to maintain tight control over the daily affairs in the colonies. Over time, the colonists gained considerable freedom from British regulations and frequently found ways to evade what were relatively low taxes. The British, of course, realized what was happening but largely turned a blind eye as long as the system was functioning. This situation became known as salutary neglect.
However, this rather tranquil relationship between Great Britain and the American colonies began to turn sour in 1754 with the outbreak of the French and Indian War (also called the Seven Years’ War). In that year, intense fighting broke out between two coalitions over control of the North American continent. One faction was composed of the French and their Native American allies, and the other faction consisted of the British, American colonists, and their Native American supporters. The British- American-Native American coalition ultimately prevailed in 1763, with Great Britain wresting control of Canada, Louisiana, and the Mississippi River Valley.
This war proved particularly costly for Great Britain for two reasons. First, in 1754, the British convened a meeting of colonial representatives in Albany, New York, to organize for war. But the assemblage went far beyond British expectations. At this meeting, Benjamin Franklin of Pennsylvania introduced the Albany Plan of Union, calling for a colonial confederation to levy taxes, establish a militia, and address common concerns. The British rejected the plan, fearing it would weaken their control over the colonies, but the seeds were planted for unification. Second, the war significantly drained the British treasury. The cost of maintaining British troops in North America while simultaneously fighting the French on the European continent was staggering. To pay for the war, the Parliament began to impose a series of taxes and trade regulations on the American colonists.
The American colonists greatly resented these new taxes and regulations. Among the most despised British taxes was the stamp tax of 1765, a tax on all printed materials, including playing cards, legal documents, diplomas, calendars, and newspapers. The colonists, believing this was taxation without representation, called for a meeting in New York City in October 1765 to voice their opposition. Nine colonies sent representatives to the Stamp Act Congress. The delegates petitioned the Crown and Parliament to rescind the new taxes and called for a boycott of British goods. To enforce this boycott, colonists formed groups called Sons and Daughters of Liberty. Among the most notable protests was the Boston Tea Party on December 16, 1773, when some 200 patriots, disguised as Indians, stormed three ships to throw tea into the harbor in protest of the British tea tax. The British reacted by imposing additional taxes in 1774, known as the Coercive or Intolerable Acts, which in turn galvanized the colonists’ resolve.
First Continental Congress
To exert greater pressure on the Parliament, the 56 delegates from all states but Georgia assembled at Carpenter’s Hall in Philadelphia on September 5, 1774. Notable delegates included Patrick Henry and George Washington of Virginia, John Adams and Samuel Adams of Massachusetts, John Dickenson of Pennsylvania, John Rutledge of South Carolina, and Roger Sherman of Connecticut. Known as the First Continental Congress, the delegates denounced the Intolerable Acts, petitioned King George III to make reforms, and agreed to meet the following year should their demands be ignored. The British again refused to accede to the colonists’ demands. Then, on April 19, 1775, fighting broke out at Lexington and Concord in Massachusetts between the British regulars the colonial militia. These so-called shots heard round the world signaled the start of the Revolutionary War.
Second Continental Congress
The delegates reassembled at the State House (now called Independence Hall) in Philadelphia on May 10, 1775, becoming the Second Continental Congress. This time, all 13 colonies sent representatives. Joining this congress were John Hancock and Elbridge Gerry of Massachusetts; Oliver Ellsworth of Connecticut; John Jay, Robert Livingston, and Alexander Hamilton of New York; James Madison, George Wythe, Edmund Randolph, and Richard Henry Lee of Virginia; Benjamin Franklin and James Wilson of Pennsylvania; and Charles Pinckney of South Carolina. Initially, the delegates were badly split on the issue of breaking ties with Great Britain. Roughly one third of the delegates opposed independence, one third favored independence, and one third were uncertain how to proceed. John Hancock of Massachusetts was chosen the president of the Continental Congress, as the representative voted to raise money, issue currency, and form a continental army under the leadership of George Washington.
As events unfurled, public support for independence accelerated. Among the most persuasive arguments for independence were those advanced in Thomas Paine’s Common Sense. This widely read pamphlet, appearing in January 1776, underscored what Paine considered the people’s moral obligation to cast off the yoke of British oppression. Within months, calls for independence resonated throughout the colonies. Then, on June 7, 1776, Richard Henry Lee introduced this bold motion to the Second Continental Congress:
Resolved, That these United Colonies are, and of right ought to be free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. (para. 1)
The congress approved the resolution, and a committee, composed of Robert Livingston, Benjamin Franklin, John Adams, Roger Sherman, and Thomas Jefferson, was appointed to draft the formal declaration. The bulk of this document, the Declaration of Independence, was written by the erudite Jefferson.
The Declaration of Independence
The Declaration of Independence, often called the birth certificate of our nation, can be viewed as three interrelated sections. In the first section, Jefferson explained the reason for the declaration and the philosophical principles on which it is constructed. He began by stating the underlying principles of democracy—representative government, limited government, rule by law, and individual democracy. Borrowing extensively from the natural rights philosophers and the Judeo-Christian heritage, Jefferson wrote,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. (Declaration of Independence, para. 3)
Note how Jefferson substituted the words pursuit of happiness for the Lockean concept of property. Some scholars believe the phrase pursuit of happiness was just a form of shorthand for property, while others maintain the substitution was effectuated to prevent Americans from falsely anticipating the distribution or redistribution of property by the new government. Again, note the Constitution’s Fifth and Fourteenth Amendments’ reinsertion of property when they guarantee that no person shall be denied the right to “life, liberty or property, without due process.”
The second section of the Declaration provides a detailed list of grievances against King George III. Among other things, the document charges that he has quartered British soldiers in civilian homes, levied taxes without the consent of the people, cut off trade, denied the right to trial by jury, abolished elected legislatures, and imposed absolute rule.
The final section clarifies the colonists’ fruitless efforts to resolve differences peacefully, chastises the Crown’s recalcitrance, and declares that the colonists must be free of British rule. The document concludes with these searing words:
That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract allegiances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. (Declaration of Independence, para. 33)
Technically, the Second Continental Congress formally declared independence on July 2, but it would be another 2 days before the redacted Declaration of Independence received final approval on July 4, 1776. The document was then delivered to John Dunlap, a renowned Philadelphia artisan, for final printing. Contrary to popular paintings, the delegates did not sign the Declaration of Independence at one sitting. Rather, the 56 signatures were affixed to the engrossed copy over a period of weeks, beginning with John Hancock’s bold strokes on August 2, 1776. Although the Declaration of Independence makes it clear that the colonists were cutting ties with England, uncertainty remained about the nature of the new government. Were the signers creating 13 sovereign nations or 1 sovereign nation consisting of 13 states? The document appeared to send mixed signals by stating that “these United Colonies are . . . Free and Independent States” (Declaration of Independence, para. 33).
Colonies Transform Into States
Clearly, the colonies thought they were independent states. The process of transforming colonies into independent states started even before the Declaration of Independence was inked. New Hampshire became the first colony to jettison its royal charter and craft a state constitution in January of 1776, and over the course of several years, the remaining colonies followed suit. Each new state considered itself an independent, sovereign nation, free to engage in foreign commerce, negotiate treaties, establish currency, and control its own borders. Although the 13 new state constitutions varied in wording and length, they contained a number of commonalities. All of them embraced separation of powers, establishing a legislative, an executive, and a judicial branch of government. With the exceptions of Pennsylvania and Georgia, all adopted bicameral or two-house legislatures, with the lower house being popularly elected by qualified voters. For the most part, the executive branch was considered weak, reflecting the recent colonial distrust of the royal governors. Seven states also included a bill of rights. And each newly created state continued to send delegates to the Second Continental Congress and support the establishment of the Articles of Confederation.
Articles of Confederation
As the Revolutionary War accelerated, representatives at the Second Continental Congress soon came to the realization that some central governmental apparatus was necessary to coordinate the states, marshal resources, and prosecute the war. In 1776, a committee set forth a plan for the Articles of Confederation. The proposal was debated for more than a year and a half before the Continental Congress approved it and it was sent to the states for ratification. The Articles of Confederation (1777) went into effect in 1781, after Maryland became the requisite 13th state to ratify the plan. The Articles thus became America’s first written national constitution.
The Articles of Confederation formed largely an association of independent states. Its stated purpose was to establish a “firm league of friendship” to promote “their common defense, the security of their liberties, and their mutual and general welfare” (Article III). Yet the document recognized each state’s right to retain its “sovereignty, freedom, and independence” (Article II). The centerpiece of the Articles was a unicameral legislature. All representatives were appointed by their respective state legislatures, and most received only nominal compensation at best. The number of representatives allotted for each state delegation ranged from two to seven, but each state was entitled to cast a single vote in the Confederation Congress. All legislative actions required approval of two thirds, or 9 of the 13 states. There was no executive authority, and the judiciary had extremely limited jurisdiction. Thus, the central government was inherently week.
From the very outset, the Articles of Confederation were plagued by a series of vexing problems. The Confederation Congress had no authority to impose tariffs or collect taxes. Without revenue, the confederation could not adequately pay an army or a navy. And without military forces, the confederation could not prevent piracy on the high seas, protect settlements on the frontier, or pay off a growing war debt. The Confederation Congress was also powerless to regulate commerce or settle boundary disputes between sister states. States frequently taxed imported goods, coined their own money, imposed trade barriers, and negotiated treaties with foreign governments and Native American tribes. Because states often refused to recognize contracts, civil judgments, and criminal proceedings from neighboring states, debtors could stave off bill collectors and criminals could avoid prosecution by simply moving across state lines. Finally, it was virtually impossible to address these glaring weaknesses because unanimity was required to amend the Articles.
The Articles of Confederation, however, were not a total failure. Despite their glaring weakness, they managed to hold the states together long enough to conclude the war and forge the Treaty of Paris with Great Britain in 1783. The Articles also enacted the Northwest Ordinance of 1787 that provided the ground rules for developing Western lands, annexing territories, and admitting new states under the U.S. Constitution (Article IV, Section 3.1 and 3.2). The Articles diplomatic corps also provided international experience for many future American leaders, including Thomas Jefferson, John Adams, and Benjamin Franklin. And some of the legislative committees and administrative rules established under the Articles laid the foundation for our present-day Departments of State, Treasury, and Defense.
The Constitution of the United States
Road to the Constitution
By 1786, the Confederation was on the verge of economic collapse. The currency issued by the Continental Congress became seriously devalued, and states accelerated the printing of worthless paper money to enable citizens to pay their debts and taxes. Inflation was running rampant, and foreclosures reached epidemic proportions. Citizens gathered in the streets and at government buildings to protest and advocate for government reform. Emblematic of the growing economic unrest was Shay’s Rebellion in Massachusetts. In 1786, Daniel Shay, a distraught farmer and Revolutionary War veteran, organized protests of debtors’ prisons and courthouses. The uprising was ultimately quelled, but it sent a clear signal among state leaders that drastic action was needed to restore public confidence and restore order.
A group of prominent Virginians, led by George Washington and James Madison, convinced the Virginia legislature to convene a meeting of sister states in Annapolis, Maryland, to discuss maritime commerce, trade, and the state of the union. In September 1786, five states—Virginia, New York, Delaware, New Jersey, and Pennsylvania—sent representatives to this Annapolis Convention. Among the most influential representatives that met at Mann’s Tavern were James Madison (Virginia), Alexander Hamilton (New York), John Dickenson (Delaware), and Edmond Randolph (Virginia). After discussing their common economic woes, the small assemblage issued a challenge to all states to consider revising the Articles of Confederation. Spurred on by the Annapolis Convention, in February 1787, the Continental Congress officially called on all 13 states to send delegates to Philadelphia the following May:
for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall . . . render the federal constitution [the Articles of Confederation] adequate to the exigencies of Government and the preservation of the Union. (Resolution of Congress, 1787, para. 2)
The Constitutional Convention
Eleven states quickly appointed delegates to assemble at the State House (now called Independence Hall) in Philadelphia on May 14, 1787. New Hampshire’s delegates appeared much later in the proceedings, and Rhode Island opted not to participate. Altogether, 73 delegates were appointed, only 55 attended any of the sessions, and just 39 signed the completed document. All were white males, and all were Protestant, save one (Daniel Carroll, a Catholic from Maryland). The delegates’ average age was roughly 43 years. Jonathan Dayton of New Jersey was the youngest delegate, at 26, and the venerable Benjamin Franklin was the oldest, at 81. Occupationally, 32 of the 55 delegates were lawyers, 8 were merchants, 3 were medical doctors, 2 were college presidents, about 2 dozen owned slaves, 1 was an inventor (Benjamin Franklin), and nearly all had considerable political seasoning. Eight had signed the Declaration of Independence, 44 were state representatives in the Continental Congress, 7 had been governors, many had been officers in the Continental army, and the vast majority served in their respective colonial or state legislatures.
Unquestionably, the most prominent national figures to participate in the Constitutional Convention were George Washington of Virginia and Benjamin Franklin of Pennsylvania; they provided a sense of legitimacy and gravitas to the convention. Other highly respected senior solons included Roger Sherman of Connecticut, John Dickinson of Delaware, George Mason of Virginia, John Rutledge of South Carolina, and William Livingston of New Jersey. Among those who held strong state and parochial interests were William Patterson of New Jersey, Charles Pinckney of South Carolina, Luther Martin of Maryland, and Robert Yates and John Lansing of New York. Those advocating strong national proclivities included James Wilson of Pennsylvania, Alexander Hamilton of New York, and James Madison of Virginia. Noticeably absent were patriots Thomas Jefferson, John Adams, John Hancock, Samuel Adams, and Patrick Henry. Jefferson and John Adams were serving diplomatic missions in Europe, Hancock and Sam Adams were not picked as their respective states’ delegates, and Patrick Henry held apprehensions about the convention’s motives, saying he “smelt a rat.”
The Convention Organization
The Convention did not reach a quorum (7 of 12 states) to conduct a formal meeting until May 25, 1787. The first order of business was to select its leaders and establish rules of procedure. General George Washington was unanimously elected the presiding officer, and Major William Jackson of South Carolina was selected recording secretary. Washington sat at the front of the assemblage and appeared to say little during the proceedings, but his towering presence and air of neutrality doubtlessly helped maintain decorum. Jackson’s official journals, however, were slipshod and incomplete. Fortunately for posterity, others took notes, including Robert Yates, James McHenry, John Lansing, and, most important, James Madison. Madison sat near the front of the convention and maintained the most detailed records of the convention’s motions and debates. It is largely for this reason, plus his sage proposals, that James Madison has been appropriately dubbed the Father of the Constitution. (Madison’s notes were subsequently given to Washington, who deposited them with the Department of State in 1796. Following Madison’s death in 1836, Congress promulgated the convention notes.)
The convention rules were quite simple and flexible. The framers agreed to keep the proceedings secret to encourage candidness and full discussion of the issues. Doors remained locked and guarded. And to maintain secrecy, the delegates often had to conduct business with the windows down during the long, hot summer months. Much of the proceedings took place in the committee of the whole, and specific proposals were assigned to select committees to help iron out differences. Each state had but one vote, a quorum was required, and motions passed with a simple majority vote.
The challenges facing the convention delegates were both daunting and complex. James Madison would later summarize the central dilemma this way: “In framing a government which is to be administered by men over men, the chief difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself” (“The Federalist No. 51,” 1788, para. 4). Obviously, the framers realized the Articles of Confederation had failed to adequately control the government and needed to be jettisoned. But they were equally fearful of establishing a central government so powerful that it would run roughshod over the states and, more important, the people’s rights. Was it possible to create a written constitution that could satisfy both objectives? This is something that no national polity had theretofore ever created. And how would the framers address the critical issues regarding representation, slavery, and the economy?
Forging the New Constitution
The Issue of Representation
Once the Convention had agreed on its rules, Edmund Randolph of Virginia quickly introduced a groundbreaking plan that framed the debate over the new constitution. This plan, known as the Virginia Plan, was really the brainchild of James Madison. It contained 15 resolutions that called for the abandonment of the Articles of Confederation and the creation of a strong national government. Among other things, the plan called for three branches of government— legislative, executive, and judicial. The legislative branch would be composed of two houses, an upper and a lower house, whose representation would be based on a state’s population. Virginia, for example, would have 16 representatives, while Delaware would be entitled to just two. The popularly elected lower house would then select members of the upper house. The legislative branch would also choose members of the executive and judicial branches, but each branch would possess the ability to check the other branch. Additionally, the national government would possess authority to override contradictory state laws. The convention debated this plan for nearly a fortnight. The more populous states, such as Massachusetts, New York, and Virginia, naturally favored this large-state plan, while the less populous states, such as Delaware, Georgia, and New Jersey, understandably vehemently opposed the Virginia Plan.
On June 15, William Patterson of New Jersey offered a counterproposal, known as the small-state or New Jersey Plan. Under this plan, the Articles of Confederation essentially would be maintained but significantly altered. The plan called for a one-house congress with representatives appointed by their respective state legislatures. And each state would have but one vote, irrespective of the state’s population. However, the plan called for plural executives chosen by the national congress and a supreme court appointed by the executive branch. The convention debated this plan for 4 days, but its provisions, and alternatives offered by Alexander Hamilton of New York and Charles Pinckney of South Carolina, were categorically rejected by the larger states. The delegates were thus at loggerheads over the issue of representation.
By late June, the convention appeared to be on the verge of collapsing over the issue of representation and structure of the national government. Indeed, Luther Martin (1911), of Maryland, recorded on June 28 that the convention was “scarcely held together by the strength of a hair” (p. 196). The stalemate was finally broken when the Connecticut delegation, led by Roger Sherman, offered this solution: “In one branch the people ought to be represented; in the other, the states” (Boutell, 1896, p. 145). According to this Connecticut Compromise (or Great Compromise), the new congress would be composed of two houses—a lower and an upper house. Representatives in the lower house, or House of Representatives, would be apportioned according to population and would be elected by qualified voters in their respective states. This chamber would also be charged with initiating revenue bills. Legislators in the upper house, or Senate, would be chosen by their respective state legislatures, and every state would be entitled to the same number of senators.
The Issue of Slavery
The framers also faced the vexing issues relating to slavery. The total population among the 13 original states (excluding Native Americans) was approximately 3 million in 1787, and of that, roughly 300,000, or about 10% of the total population, were slaves. The vast majority of slaves lived in the six Southern states, where slave labor was critical to supporting large plantations. Delegates from the Southern states were therefore concerned over four critical issues. First, they opposed any efforts to abolish or tax the importation of slaves under the new constitution. Second, Southern delegates sought assurances that free states would return runaway slaves to their owners. Third, Southern delegates wanted slaves to count for representation in the national legislature. But fourth, they did not want slaves counted for the purpose of apportioning taxes among the states. Northern delegates naturally opposed such measures; they believed Southern states would accelerate the importation of slaves to unfairly increase their representation in the lower house.
This sectional rift over slavery too was resolved through a series of compromises. Regarding the issue of importation, the delegates agreed, in the so-called slave trade compromise, that the importation of slaves “shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight” and that an importation tax shall not exceed “ten dollars for each Person” (U.S. Constitution, 1787, Article I, Section 9.1). (Congress outlawed the importation of new slaves in 1808, and slavery, of course, was ended with the Civil War and the passage of the Thirteenth Amendment in 1866) The framers also agreed to the so-called fugitive slave compromise in Article IV, Section 2.3, authorizing Congress to establish rules for recapturing escaped slaves. (This was rendered null and void with the passage of the Thirteenth Amendment.) Finally, concerning the issue of representation and taxation, the delegates agreed in Article I, Section 2.3, to a so-called three-fifth’s compromise, whereby slaves were to be counted as three fifths of free persons. (This too was superseded by Section 2 of the Fourteenth Amendment in 1868.)
Delegates were also badly divided over economic issues. The Northern states’ delegates were particularly concerned about commerce. As noted earlier, Northern manufacturers and shipping interests were hard hit under the Articles of Confederation. States frequently imposed trade barriers, coined their own money, and were unable to enforce contracts made in sister states. The national government was also powerless to regulate commerce, protect domestic goods from foreign competition, or prevent the piracy of manufactured goods shipped on the high seas. Northern delegates thus preferred a strong national government with the power to negotiate treaties, levy taxes, and regulate commerce. Southern states’ delegates, however, feared that a strong national government might run roughshod over their economic interests. More specifically, they feared a strong national government would impose tariffs that might have deleterious effects on their agricultural products (namely, tobacco and cotton) and engage in treaties that would ultimately outlaw slave transactions.
Concessions were made on both sides of the economic divide. Among other things, the Northern states’ delegates were able to secure the national governmental power to (a) lay and collect taxes (Article I, Section 8.1), (b) negotiate treaties (Article II, Section 2.2), (c) regulate foreign and interstate commerce (Article I, Section 8.3), (d) provide for an army and navy (Article I, Sections 8.12 and 8.13), and (e) punish piracy on the high seas (Article I, Section 8.10). The Southern states’ delegates won assurances that (a) Congress could not tax articles exported from states (Article I, Section 9.5), (b) Congress could not prefer one port over another (Article I, Section 9.6), (c) treaties required a two-thirds vote of the Senate (Article II, Section 2.2), and (d) the slave trade would not be prohibited for two decades (Article I, Section 9.1).
Basic Features of the Constitution
Separation of Powers
Among the most striking features of the U.S. Constitution is the concept of separation of powers. Separation of powers can be traced to French philosopher Baron de Montesquieu (1748/1989) and his classic work, The Spirit of the Laws. Drawing on the ancient Roman republic, Montesquieu believed there were three fundamental forms of government—monarchy (rule by one), aristocracy (rule by few), and democracy (rule by many)— and that the best way to achieve the common good was to have a mixed constitution that combined all three forms. Montesquieu further believed the British government of his day more or less encapsulated this notion with the tripartite division of the king (monarchy), the House of Lords (aristocracy), and the House of Commons (democracy).
The framers, particularly Madison, were familiar with Montesquieu’s (1748/1989) concept of dividing powers and the necessity of preventing any one interest from becoming too powerful. However, the framers modified Montesquieu’s concept by creating three separate branches of government in the U.S. Constitution. Article I, Section 1 states, “All Legislative Powers herein granted shall be vested in a Congress which shall consist of a Senate and a House of Representatives.” Article II, Section 1 provides, “The Executive Powers shall be vested in a President of the United States. . . .” And Article III, Section 1 begins, “The Judicial Power shall be vested in one Supreme Court and such inferior courts as Congress shall from time to time ordain and establish.”
Under this plan, each of the three branches is responsible to a different constituency. Members of the Senate were to be selected by their respective state legislatures (the Seventeenth Amendment in 1913 calls for the popular election of U.S. senators), while members of the House of Representatives were to be popularly elected by qualified voters in their respective states. The president of the United States is to be chosen by electors (collectively referred to as the electoral college). And the Supreme Court justices are appointed by the president with “advice and consent” (a simple majority vote) of the Senate. Additionally, the officials of each branch serve for different terms, making it difficult for any one interest to wrest control of government in a single election. Thus, U.S. senators serve 6-year staggered terms so that only one third are up for reelection every 2 years, U.S. House members serve 2-year terms with all members facing reelection every 2 years, the president serves 4-year terms (the 22nd Amendment of 1951 restricts the president to two 4-year terms or a total of 10 years), and justices of the Supreme Court serve as long as they maintain “good behavior.”
Checks and Balances
In addition to separating the powers, each branch is given constitutional authority to challenge the other two branches. This makes it difficult for any particular interest to gain too much control of the national government. This arrangement, known as checks and balances, also comports with Madison’s belief that “ambition must be made to counter ambition” (“The Federalist No. 51,” 1788, para. 4). Consider some of the powers and restrictions the framers built into our Constitution. A bill that passes the House of Representatives can be tabled in the Senate, and vice versa (Article I, Section 7.2). Any bill that passes both houses of Congress can be vetoed by the president (Article I, Section 7.2), but vetoes (excluding pocket veto) can be overridden by a two-thirds vote of both houses of Congress (Article I, Section 7.3). The Supreme Court can declare acts of the Congress unconstitutional (see judicial review in the following discussion), but Congress can alter the appellate jurisdiction of the federal courts (Article III, Section 1) and propose constitutional amendments (Article V) to supersede the high court (as it did with the Eleventh, Fourteenth, and Sixteenth Amendments). And the House can impeach and the Senate can remove the president or federal judges for “Treason, Bribery, or other high crimes and Misdemeanors” (Article I, Section 3.6; Article II, Section 4).
In addition to the issues of representation and slavery, the question of how to divide powers between the national government and the states was of paramount concern to the framers. As noted earlier, the delegates had personally experienced the weaknesses of a confederation and recognized the necessity of establishing a stronger national government. Yet delegates were leery of a unitary government and were unwilling to surrender their respective states’ control over local affairs. The compromise was to establish a totally new and unique form of government, a federal form of government, in which a written constitution enumerates the powers belonging to the national government and places restrictions on both the national and state governments.
More specifically, the original (sans amendments) U.S. Constitution (a) delegates powers to the national government—Congress, for example, has the power to lay and collect taxes and tariffs (Article I, Section 8.1), declare war (Article I, Section 8.11), promote science and arts (Article I, Section 8.8), suppress insurrections and repel invasions (Article I, Section 8.15), create new states (Article IV, Section 3), and guarantee each state a republican form of government (Article IV, Section 4); (b) restricts powers of the national government—Congress may not suspend the writ of habeas corpus in peacetime (Article I, Section 9.2), pass ex post facto laws or bills of attainder (Article I, Section 9.3), tax goods exported from states (Article I, Section 9.5), or grant titles of nobility (Article I, Section 9.8); and (c) restricts the powers of the state governments—state governments, for instance, may not enter into treaties with foreign governments, grant letters of marque and reprisal (authority of private bounty hunters to capture pirates), coin money, pass bills of attainder or expost facto laws, interfere with private contracts, or grant titles of nobility (Article I, Section 10.1).
Additional governmental delineations were created after the U.S. Constitution was ratified. Among the powers recognized through subsequent constitutional amendments or Supreme Court rulings were (a) powers retained by the people—see the Ninth Amendment and rulings on the right of marital privacy (Griswold v. Connecticut, 1965) and abortion rights (Roe v. Wade, 1973); (b) powers reserved to the state or people—powers that are neither given to the national government nor prohibited the states (see the Tenth Amendment) and include the state governments’ right to provide public education or regulate political parties (because neither terms are found in the U.S. Constitution); and (c) powers implied from the Constitution—these powers are not specifically stated in the Constitution but are naturally inferred from those that are. Implied powers can be traced to the landmark decision McCulloch v. Maryland (1819), when Chief Justice John Marshall upheld the federal government’s authority to establish a national banking system, even though the word bank nowhere appears in the constitution. Marshall reasoned, in part, that since Congress possessed the delegated powers to coin money, borrow money, tax, spend, punish counterfeiting, and regulate bankruptcies (see Article I, Section 8) and since Congress is also empowered to do what is “necessary and proper” (see Article I, Section 8.18, the so-called elastic clause) to carry out those delegated powers, Congress therefore had the right to establish a banking system. The Constitution also placed limits on government, including (a) restrictions on the national government—among the rights protected were freedom of expression (First Amendment), the right to bear arms (Second Amendment), freedom from unreasonable searches and seizures (Fourth Amendment), freedom from self-incrimination (Fifth Amendment), the right to counsel (Sixth Amendment), and freedom from cruel or unusual punishments (Eight Amendment); and (b) restrictions on the state governments— the U.S. Constitution now proscribes state governments from denying persons the right to due process, equal protection, privileges, or immunities (see the Fourteenth Amendment). These are just a few of the proscriptions set forth in the Constitution and Bill of Rights and later amendments.
Supremacy of National Laws
The framers understood that there would be periodic conflicts between the national laws and state laws, especially over concurrent or shared powers (for example, both national and state governments may levy taxes, charter corporations, and enact criminal laws). To resolve jurisdictional conflicts between the two levels of government, the founders included this so-called supremacy clause:
This Constitution, and the law of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. (U.S. Constitution, 1787, Article VI, Section 2)
Thus, if a conflict occurs between the U.S. Supreme Court ruling and a state constitution, the former would hold sway (see Brown v. Board of Education, 1954). Similarly, should a dispute arise over a legitimate treaty and a state constitution, the treaty would take precedence (see Missouri v. Holland, 1920). And if a dispute arises between a law passed by Congress and a state legislature, the national statute generally would be deemed superior (for example, see Pennsylvania v. Nelson, 1956). The supremacy clause is the legal mortar that helps hold the federal system together.
Ratifying the Constitution
The framers drafted, debated, and concluded their work in 116 days. On September 17, 1787, 39 brave delegates, starting with George Washington, affixed their signatures to the final document. The Constitution of the United States is a relatively short document providing the framework on which the American political system is built. The final version was penned by Jacob Shallus, a clerk for the Pennsylvania state legislature, for a fee of $30, on four pages of parchment, approximately 24 inches wide and 29 inches long. The document contains just 4,400 words (perhaps fewer words than today’s daily newspapers’ sports sections). It begins with the Preamble, a one-paragraph introduction, stating its lofty purpose:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (U.S. Constitution, 1787, para. 1)
The body of the Constitution is composed of the following Articles or legal subdivisions: Article I (legislative branch); Article II (executive branch); Article III (judicial branch); Article IV (interstate relations); Article V (amendment process); Article VI (debt assumption, supremacy clause, and oath restrictions); and Article VII (provisions for ratification).
Drafting the new document was a monumental accomplishment, but it was just the first step in the tortuous process. Next, the framers reported back to the Continental Congress, which reluctantly agreed to submit the proposed Constitution to the states for ratification on September 28, 1787. The Congress agreed to follow the procedures set forth in Article VII by requiring the approval of 9 of 13 states in ratifying conventions. The framers wisely opted to use state ratifying conventions rather than state legislatures, because many state legislators opposed efforts to strengthen the national government, especially in New York, Virginia, and Rhode Island (which, of course, sent no delegates to the Philadelphia convention).
Delaware became the first state to ratify the new Constitution on December 7, 1787, and over the course of 7 months, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, and South Carolina followed suit. On June 21, 1788, New Hampshire became the ninth state to complete the requisite ratification. Still, there was considerable work to be done. Virginia and New York, the most populous and influential states, had yet to ratify the Constitution, and without their critical support, many feared the new government might not survive. For the most part, civic leaders split into two diametrically opposed camps—the anti-Federalists and the Federalists.
Anti-Federalists and Federalists Debate
Even before the Constitution’s ink was dry, opposition to its provisions began to organize. Among the delegates who refused to sign the Constitution were Elbridge Gerry of Massachusetts and George Mason of Virginia. Other notable state leaders who joined the anti-Federalist camp included Patrick Henry, William Grayson, James Monroe, and Richard Henry Lee of Virginia; Samuel Adams and John Hancock of Massachusetts; Luther Martin of Maryland; Samuel Bryan of Pennsylvania; and George Clinton and Robert Yates of New York. During the ratification period, some anti-Federalists delivered speeches and published newspaper articles criticizing the new government. Those articles, now collectively known as the “Anti-Federalist Papers,” appeared under such nom de plumes as Centinel (Samuel Bryan), Cato (George Clinton), Federal Farmer (most likely Richard Henry Lee), and Brutus (Robert Yates).
The anti-Federalists registered many complaints about the Constitution. Many objected to the secrecy enshrouding the Philadelphia convention. However, the most salient anti-Federalist objections concerned expanded powers of the national government relative to the states and citizens. They feared that the so-called necessary and proper clause (Article I, Section 8.18) would give Congress a virtual blank check to expand legislative authority over the states. They averred the president would have too many powers, especially military command of a permanent national army during peacetime. The prospect that the Supreme Court could nullify state constitutions and statutes using the so-called supremacy clause (Article VI, Section 2) was especially troubling. Most important, they complained the new constitution lacked a bill of rights to ensure individual liberties against the national government’s action. The unamended Constitution, for example, contained no guarantees of free speech, press, or assembly.
Noteworthy supporters of the new Constitution included George Washington, William Randolph, John Marshall, and James Madison of Virginia; Gouverneur Morris of Pennsylvania; and Alexander Hamilton and John Jay of New York. Ironically, at the Philadelphia Convention, Alexander Hamilton had serious misgivings about the Constitution but signed begrudgingly, while William Randolph refused to sign altogether. The two, however, came to realize the futility of the Articles of Confederation and the necessity of embracing a stronger national government.
The most effective advocates of the proposed Constitution were Madison, Hamilton, and Jay. Between October 2, 1787, and May 28, 1788, the three published 85 essays in New York newspapers under the pen name Publius. Known collectively as “The Federalist Papers,” the essays were widely read and effectively countered the arguments advanced by the anti-Federalists. For example, the Federalists maintained that the Articles of Confederation were beyond repair, that the separation of powers with built-in checks and balances would prevent any one branch from dominating the national government, that the popularly elected chamber (House of Representatives) would control the purse strings of military operations, that the Supreme Court would be the weakest branch of government, and that individual freedoms were protected under Article I, Sections 9 and 10. But to allay the anti-Federalist’s fears, the Federalists promised to add a bill of rights once the Constitution had been ratified, and a national government was in place.
The Federalists’ pledge to add a bill of rights doubtlessly helped sway members of the Virginia and New York ratifying conventions. Virginia ratified the Constitution on June 25, 1788, and New York ratified by a scant three votes on July 26, 1788. Ratification by these two critical states ensured that the new government would take root. The final business of the Continental Congress was to determine a temporary nation’s capital, call for congressional elections, and set the date for the new government to commence.
The Constitution: An Elite Document or a Bundle of Compromises?
Over the years, many scholars have devoted considerable attention to ascertaining the motives of the people who wrote and supported the Constitution of the United States. The central question is whether the founders were motivated by self-interests or lofty principles. There are loosely two schools of thought—those who contend the Constitution reflects the preferences of an economic elite class, and those who believe the Constitution is not only an amalgam of compromised interests but also an embodiment of democratic theory.
Arguably the most influential scholar on this topic is Charles A. Beard (1913), a historian from the University of Wisconsin and a former president of the American Political Science Association. In his seminal work, An Economic Interpretation of the Constitution, Beard impugned the notion that the 55 delegates who attended the Constitutional Convention did so solely for altruistic reasons. Beard’s rather cursory examination of treasury, census, and tax records led him to conclude that the framers were economically motivated to form the new government. He implies, then, that the U.S. Constitution is essentially an economic document created by political elites to protect their investments that were deleteriously impacted by the ineffectual Articles of Confederation. His research revealed that of the 55 convention delegates, 11 could be classified as manufacturers, merchants, or shippers; 40 were holders of public security interest (including George Washington); 14 were Western land speculators (including George Washington); 24 were lenders or creditors (including George Washington); 15 owned plantations with significant slaveholdings (including George Washington); but not a single delegate represented the so-called mechanics class (laborers). Beard further asserts that George Washington was likely the richest man in the 13 states and that the framers were primarily well-heeled lawyers from coastal regions where manufacturing and shipping were quite prevalent. Finally, Beard concludes that at least five sixths of the framers were the direct beneficiaries of the Constitution and that less than one sixth of the white male population had any voice in the ratification process.
Again, consider some of the provisions relating to economic interests in the U.S. Constitution. As noted earlier, Congress has the power to coin money, regulate interstate commerce, regulate bankruptcies, and establish weights and measures (Article I, Section 8). Such authority was lacking under the Articles. The U.S. Constitution grants the national government authority to establish an army (which can protect land investments on the frontier) and a navy (which can prevent piracy of shipped goods on the high seas). States are constitutionally forbidden (Article I, Section 10.1) to interfere with contracts (thus preventing debtor-dominated legislatures canceling money owed the creditors). The so-called full faith and credit provision (Article IV, Section 1) makes it difficult for people to avoid debts by moving to another state. People fleeing to another state to avoid criminal prosecutions may be extradited (Article IV, Section 2.2), and Congress regulates the development of Western lands (Article IV, Section 3.2). These and other economic-related clauses thus appear to lend credence to Beard’s thesis.
However, there is a significant body of research that questions Beard’s methodology and conclusion that the framers represented but a single, monolithic interest—the well-to-do. In his seminal work, The Framing of the Constitution of the United States, Max Farrand (1913) observed that the Constitution is a “bundle of compromises” of varied societal and economic interests. Similarly, noted historian Robert E. Brown (1956) asserted in Charles A. Beard and the Constitution that Beard seriously underplays the variety of economic interests at the Philadelphia Convention. Brown’s empirical research reveals that poor people and middle-class Americans were also adversely affected under the Articles of Confederation, that the framers and state leaders who ratified the Constitution had democratic leanings, and that it is wrong to conclude the Constitution is an economic document created to protect the interests of wealthy creditors.
Arguably the most damaging criticism of Beard’s thesis came from historian Forrest McDonald (1976), in his classic work, We the People: The Economic Origins of the Constitution. McDonald began by reinvestigating the financial archives of the 55 delegates to the Philadelphia Convention plus the personal backgrounds of over 1,700 delegates to the state ratifying conventions. His perusal reveals that Beard’s research was slipshod and that there were several dozen competing economic interests surrounding the adoption of the Constitution. Although McDonald concedes that most of the framers were relatively well-to-do, he also amply demonstrates there were many wealthy civic leaders, including those who held public securities, who seriously opposed the Constitution. Conversely, McDonald identified numerous people of modest means with scant property ownership who supported the Constitution. McDonald ultimately concludes that the process surrounding the adoption and ratification of the Constitution was fluid and dynamic and that the framers, as a whole, were principled, pragmatic men who understood the necessity of chartering a new form of government.
The New Government and The Bill of Rights
The Continental Congress chose Federal Hall on New York City’s Wall Street to serve as the nation’s first capitol and set the first Wednesday in February 1789 to elect members of the first Congress. Although the Constitution called for the Congress to convene on March 3, the new government lacked a quorum (simple majority) until April 6, 1789. Moreover, the new government commenced with just 11 state delegations. North Carolina did not ratify the U.S. Constitution until November 21, 1798, and Rhode Island became the 13th state to join the Union on May 29, 1790.
Among the new Congress’s most pressing business was to select the first president, establish the judicial system, and draft a list of protected rights. George Washington was the unanimous choice of presidential electors (now popularly called the electoral college) and was inaugurated on April 30. With the passage of the Federal Judiciary Act of 1789, Congress set the number of justices on the Supreme Court at six (one chief justice and five associate justices) and determined that justices would ride circuit and decide cases twice yearly in the nation’s capital. The Federal Judiciary Act also established the appellate jurisdiction of the Supreme Court (as opposed to the original jurisdiction that is found in Article III, Section 2.1), created the other federal courts (so-called inferior courts), and set their jurisdiction (both original and appellate). The first Congress also made good on the Federalists’ promise to include a bill of rights.
Approximately 125 poorly constructed and often overlapping amendments were submitted for congressional consideration. James Madison and George Mason took the lead in editing, rewriting, combining, and crafting the amendments. On September 25, 1789, two thirds of both houses of Congress accepted the conference committee’s draft of proposed constitutional amendments. Those amendments were then submitted to the states for ratification. On December 15, 1791, 10 of the 12 proposed amendments received the approval of the necessary three fourths of the states (as stipulated in Article V) to become part of the Constitution. These first 10 amendments became known collectively as the Bill of Rights.
Ironically, the first two proposed amendments did not pass. The very first proposed amendment, if ratified, would have called for one member of Congress for every 30,000 people. Had the original first amendment been ratified, there would be more than 10,130 members in the U.S. House of Representatives (based on an estimated population of 304 million). Obviously, that would be an unwieldy and unworkable assemblage. The original second amendment proscribes members of Congress from receiving pay increases until after the subsequent congressional election. Although rejected in 1791, this amendment was subsequently ratified by the states (38 states, or three quarters of the 50 states), thus becoming the 27th and last constitutional amendment on May 18, 1992—201 years after it was first rejected.
The Constitution of the United States is now more than 220 years old. It is the oldest functioning nation-state constitution in the world. This great document did not just happen. It was crafted out of necessity and built on the experiences and philosophies of many interrelated people. The document is quite short; it contains a preamble or short justification, 7 articles, and 27 formal alterations. Altogether, the document is just 7,606 words long, far fewer than the words in most daily newspapers’ sports sections. But the Constitution’s words mean something. They contain essential legal concepts that guide and direct the way the American people function, preserve their culture, and settle differences. It is the rock on which the American political system is built. Perhaps Henry Clay (1850) said it best: “The Constitution of the United States was made not merely for the generation that then existed, but for posterity—unlimited, undefined, endless, perpetual posterity” (para. 1).
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