The
Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the
United States governmentThe federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
and for the relationship of the federal government with the states, citizens, and all people within the United States.
The first three Articles of the Constitution establish the three branches of the national government: a legislature, the
bicameralIn the government, bicameralism is the practice of having two legislative or parliamentary chambers. Thus, a bicameral parliament or bicameral legislature is a legislature which consists of two chambers or houses....
Congress; an executive branch led by the
PresidentThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
; and a judicial branch headed by the
Supreme CourtThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. They also specify the powers and duties of each branch. All powers not
enumeratedThe enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...
are reserved to the respective
statesA U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
and the people, thereby establishing the
federal systemFederalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
of government.
The Constitution was adopted on September 17, 1787, by the
Constitutional ConventionThe Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
in Philadelphia,
PennsylvaniaThe Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, and
ratifiedRatification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
by conventions in each
U.S. stateA U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
in the name of "The People". It has been
amended twenty-seven times; the first ten amendments are known as the
Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
.
The United States Constitution is the oldest written
constitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
(when defined as a single document) still in use by any nation in the world. Parts of
San Marino's ConstitutionThe Constitution of San Marino is distributed over a number of legislative instruments of which the most significant are the Statutes of 1600 and the Declaration of Citizen Rights of 1974 as amended in 2002. The constitutional system has influences from the Corpus Juris Civilis and Roman customary...
are older, dating to the 1600s. It holds a central place in
United States lawThe law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
and
political cultureThe United States is a federal constitutional republic, in which the President of the United States , Congress, and judiciary share powers reserved to the national government, and the federal government shares sovereignty with the state governments.The executive branch is headed by the President...
. The handwritten original document penned by
Jacob ShallusJacob Shallus was the engrosser or penman of the original copy of the United States Constitution. The handwritten document that Shallus engrossed is on display at the National Archives Building in Washington....
is on display at the
National Archives and Records AdministrationThe National Archives and Records Administration is an independent agency of the United States government charged with preserving and documenting government and historical records and with increasing public access to those documents, which comprise the National Archives...
in
Washington, D.C.Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
| 2. Original text : three branches |
|
| 3. Amendments : procedure |
|
| 4. Judicial review : establishment |
|
| 5. “Civic religion” : The Shrine |
|
| 6. Worldwide : national Constitutions |
|
First government
The
Articles of Confederation and Perpetual UnionThe Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
were the first constitution of the United States of America. The problem with the United States government under the Articles of Confederation was, in the words of
George WashingtonGeorge Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
, "no money".
| insecurity in the 1787 world |
|
Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back. Under the Articles, Congress requisitioned money from the states. But no state paid all of their requisition; Georgia paid nothing. A few states paid the U.S. an amount equal to interest on the national debt owed to their citizens, but no more. Nothing was paid toward the interest on debt owed to foreign governments. By 1786 the United States was about to default on its contractual obligations when the
principalA debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
came due.
The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny. Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates' extortion demands. The Congress had no more credit if another military crisis had required action.
The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.
In Massachusetts during
Shays' RebellionShays' Rebellion was an armed uprising in central and western Massachusetts from 1786 to 1787. The rebellion is named after Daniel Shays, a veteran of the American Revolutionary War....
, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General
Benjamin LincolnBenjamin Lincoln was an American army officer. He served as a major general in the Continental Army during the American Revolutionary War...
had to raise funds among Boston merchants to pay for a volunteer army. During the upcoming Convention,
James MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
angrily questioned whether the Articles of Confederation was a “solemn compact” or even government. Connecticut had not only sent none of its requisition, it had “
positively refused" to pay Confederation assessments for two years.A rumor had it that a "seditious party" among the New York legislature had opened communication with the
Viceroy of CanadaThe Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under
martial lawMartial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
.
Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. By April 1786 there had been only three days out of five months with nine states present. When nine states did show up, and there was only one member of a state on the floor, then that state’s vote did not count. If a delegation were evenly divided, the division was duly noted in the Journal, but there was no vote from that state towards the procedural nine-count requirement. Individual state legislatures independently laid embargoes, negotiated unilaterally abroad, provided for armies and made war, all violating the letter and the spirit of the Articles of Confederation and Perpetual Union. The Articles Congress had “virtually ceased trying to govern.”
The vision of a "respectable nation" among nations seemed to be fading in the eyes of such men as Virginia’s
George WashingtonGeorge Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
and
James MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
, New York’s
Alexander HamiltonAlexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
and
John JayJohn Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, and the first Chief Justice of the United States ....
, Pennsylvania’s
Benjamin FranklinDr. Benjamin Franklin was one of the Founding Fathers of the United States. A noted polymath, Franklin was a leading author, printer, political theorist, politician, postmaster, scientist, musician, inventor, satirist, civic activist, statesman, and diplomat...
and
George ClymerGeorge Clymer was an American politician and founding father. He was one of the first Patriots to advocate complete independence from Britain. As a Pennsylvania representative, Clymer was, along with five others, a signatory of both the Declaration of Independence and the U.S. Constitution...
and Massachusetts’
Henry KnoxHenry Knox was a military officer of the Continental Army and later the United States Army, and also served as the first United States Secretary of War....
and
Rufus KingRufus King was an American lawyer, politician, and diplomat. He was a delegate for Massachusetts to the Continental Congress. He also attended the Constitutional Convention and was one of the signers of the United States Constitution on September 17, 1787, in Philadelphia, Pennsylvania...
. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.
Convention
Twelve state legislatures,
Rhode IslandThe state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
being the only exception, sent delegates to convene at Philadelphia in May 1787. While the resolution calling the Convention specified that its purpose was to propose amendments to the Articles, through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design.
Sessions
In September 1786, commissioners from five states met in the
Annapolis ConventionThe Annapolis Convention was a meeting in 1786 at Annapolis, Maryland, of 12 delegates from five states that unanimously called for a constitutional convention. The formal title of the meeting was a Meeting of Commissioners to Remedy Defects of the Federal Government...
to discuss adjustments to the
Articles of ConfederationThe Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
that would improve commerce. They invited state representatives to convene in
PhiladelphiaPhiladelphia is the largest city in the Commonwealth of Pennsylvania and the county seat of Philadelphia County, with which it is coterminous. The city is located in the Northeastern United States along the Delaware and Schuylkill rivers. It is the fifth-most-populous city in the United States,...
to discuss improvements to the federal government. After debate, the
Congress of the ConfederationThe Congress of the Confederation or the United States in Congress Assembled was the governing body of the United States of America that existed from March 1, 1781, to March 4, 1789. It comprised delegates appointed by the legislatures of the states. It was the immediate successor to the Second...
endorsed a plan to revise the Articles of Confederation on February 21, 1787. The plan called on each state legislature to send delegates to a convention “’for the sole and express purpose of revising the Articles of Confederation’ in ways that, when approved by Congress and the states, would ‘render the federal constitution adequate to the exigencies of government and the preservation of the Union.’”
| the nationalists organize |
|
To amend the Articles into a workable government, 74 delegates from the twelve states were named by their state legislatures; 55 showed up, and 39 eventually signed. On May 3rd, eleven days early,
James MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
arrived to Philadelphia and met with
James WilsonJames Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
of the Pennsylvania delegation to plan strategy. Madison outlined his plan in letters that (1) State legislatures each send delegates, not the Articles Congress. (2) Convention reaches agreement with signatures from every state. (3) The Articles Congress approves forwarding it to the state legislatures. (4) The state legislatures independently call one-time conventions to ratify, selecting delegates by each state’s various rules of suffrage. The Convention was to be "merely advisory" to the people voting in each state.
Convening
George WashingtonGeorge Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
arrived on time, Sunday, the day before scheduled opening. His participation lent his prestige to the proceedings, attracting some of the best minds in America. For the entire duration of the Convention, Washington was a guest at the home of Robert Morris, Congress’ financier for the American Revolution and a Pennsylvania delegate.
William JacksonWilliam Jackson was a figure in the American Revolution, most noteworthy as the secretary to the United States Constitutional Convention. He also served with distinction in the Continental Army during the Revolutionary War...
, in two years to be the president of the
Society of the CincinnatiThe Society of the Cincinnati is a historical organization with branches in the United States and France founded in 1783 to preserve the ideals and fellowship of the American Revolutionary War officers and to pressure the government to honor pledges it had made to officers who fought for American...
, had been Morris' agent in England for a time. He won election as a non-delegate to be the Convention Secretary over Benjamin Franklin's grandson. Morris entertained among the delegates lavishly.
The convention was scheduled to open May 14, but only Pennsylvania and Virginia delegations were present. The Convention was postponed until a quorum of seven states gathered on Friday the 25th.
George Washington was elected the Convention president, and Chancellor (judge)
George WytheGeorge Wythe was an American lawyer, a judge, a prominent law professor and "Virginia's foremost classical scholar." He was a teacher and mentor of Thomas Jefferson. Wythe's signature is positioned at the head of the list of seven Virginia signatories on the United States Declaration of Independence...
(Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday.
Nathaniel GorhamNathaniel Gorham was the fourteenth President of the United States in Congress assembled, under the Articles of Confederation...
(Ma) was elected Chair of the "Committee of the Whole", a parliamentary situation where individuals spoke freely, and votes could be retaken to allow for bargaining. Provisions in the draft articles were repeatedly made, reconnected and remade as the order of business proceeded. The Convention officials and procedures were in place before arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (Md). By the end of May, the stage was set.
The
Constitutional ConventionThe Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
voted to keep the debates secret so that the delegates could speak freely, negotiate, compromise and change. Both House of Commons and the colonial assemblies were secret. Debates of the Articles Congress were not reported. Yet since the proposal was for fundamental change from a confederation to a new, consolidated yet federal government, the surprise itself made Convention secrecy a major issue in the very public debates leading up to the crowd-filled ratification conventions. Nevertheless, delegates continued in positions of public trust. Of those participating in the Convention, ten members would also number in the 33 chosen by their state legislatures for the Articles Congress that September.
Members of Convention
signers, refusers, absent |
| Order |
Name |
State represented |
| 1 |
|
VirginiaThe Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
|
| 2 |
|
Delaware Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
|
| 3 |
|
Delaware |
| 4 |
|
Delaware |
| 5 |
|
Delaware |
| 6 |
|
Delaware |
| 7 |
|
MarylandMaryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
|
| 8 |
|
Maryland |
| 9 |
|
Maryland |
| 10 |
|
Virginia |
| 11 |
|
Virginia |
| 12 |
|
North CarolinaNorth Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
|
| 13 |
|
North Carolina |
| 14 |
|
North Carolina |
| 15 |
|
South CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
|
| 16 |
|
South Carolina |
| 17 |
|
South Carolina |
| 18 |
|
South Carolina |
| 19 |
|
GeorgiaGeorgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
|
| 20 |
|
Georgia |
| 21 |
|
New Hampshire New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
|
| 22 |
|
New Hampshire |
| 23 |
|
MassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
|
| 24 |
|
Massachusetts |
| 25 |
|
ConnecticutConnecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
|
| 26 |
|
Connecticut |
| 27 |
|
New YorkNew York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
|
| 28 |
|
New JerseyNew Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
|
| 29 |
|
New Jersey |
| 30 |
|
New Jersey |
| 31 |
|
New Jersey |
| 32 |
|
PennsylvaniaThe Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
|
| 33 |
|
Pennsylvania |
| 34 |
|
Pennsylvania |
| 35 |
|
Pennsylvania |
| 36 |
|
Pennsylvania |
| 37 |
|
Pennsylvania |
| 38 |
|
Pennsylvania |
| 39 |
|
Pennsylvania |
| 40n |
refused |
Massachusetts |
| 41n |
refused |
Virginia |
| 42n |
refused |
Virginia |
| 43n |
absent |
North Carolina |
| 44n |
}
absent>
Massachusetts |
| 45n |
absent |
New Jersey |
| 46n |
absent |
Georgia |
| 47n |
absent |
New York |
| 48n |
absent |
North Carolina |
| 49n |
absent |
Maryland |
| 50n |
}
absent|| Virginia
|-
|51n ||
absent|| Maryland
|-
|52n ||
absent|| Georgia
|-
|53n ||
absent|| Massachusetts
|-
|54n ||
absent|| Virginia
|-
|55n ||
absent|| New York
|-
|}
Outside the Convention in Philadelphia, there was a national convening of the
Society of the CincinnatiThe Society of the Cincinnati is a historical organization with branches in the United States and France founded in 1783 to preserve the ideals and fellowship of the American Revolutionary War officers and to pressure the government to honor pledges it had made to officers who fought for American...
. Washington was said to be embarrassed. The 1776 “old republican” delegates like Elbridge Gerry (Ma) found anything military or hereditary
anathemaAnathema originally meant something lifted up as an offering to the gods; it later evolved to mean:...
. The
Presbyterian Synod of Philadelphia and New YorkThe Westminster Confession of Faith is a Reformed confession of faith, in the Calvinist theological tradition. Although drawn up by the 1646 Westminster Assembly, largely of the Church of England, it became and remains the 'subordinate standard' of doctrine in the Church of Scotland, and has been...
convention was meeting to redefine its Confession, dropping the faith requirement for civil authority to prohibit false worship. Protestant Episcopalian Washington attended a Roman Catholic Mass and dinner. Revolution veteran
Jonas PhillipsJonas Phillips was the first of the Phillips family to settle in America. A founder of Mikveh Israel in Philadelphia, Phillips was the father of twenty-two children and the grandfather of Uriah Phillips Levy, the first Jewish Commodore in the United States Navy.-Childhood and emigration:Phillips...
, of the Mikveh Israel Synagogue, petitioned the Convention to avoid a national oath for both Old and New Testaments.
Merchants of Providence, Rhode Island, petitioned for consideration, even though their Assembly had not sent a delegation. Congregational minister
Manasseh CutlerManasseh Cutler was an American clergyman involved in the American Revolutionary War. Cutler was also a member of the United States House of Representatives and a founder of Ohio University....
, former Army chaplain from Massachusetts arrived into town from New York, flush with his lobbying victory during the Northwest Ordnance negotiations in the Articles Congress. He carried grants of five million acres to parcel out among
The Ohio CompanyThe Ohio Company of Associates, also known as the Ohio Company, was a land company which is today credited with becoming the first non-American Indian group to settle in the present-day state of Ohio...
and “speculators”, some of whom would be found among the delegates.
Noah WebsterNoah Webster was an American educator, lexicographer, textbook pioneer, English spelling reformer, political writer, editor, and prolific author...
staying in Philadelphia, would write a pamphlet as “A Citizen of America” in October. Immediately after the signing, "Leading Principles of the Federal Convention" advocated adoption of the Constitution. It was published much earlier and more widely circulated than today's better known
Federalist PapersThe Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...
.
Agenda
Every few days, new delegates arrived, happily noted in Madison’s Journal. But as the Convention went on, individual delegate coming and going meant that a state's vote could change with the change of delegation composition. The volatility added to the inherent difficulties, making for an “ever-present danger that the Convention might dissolve and the entire project be abandoned.”
nationalist floor leaders from biggest states
most speeches, they seconded one another's motions |
|
Although twelve states sent delegations, there were never more than eleven represented in the floor debates, often fewer. State delegations absented themselves at votes different times of day. There was no minimum for a state delegation; one would do. Daily sessions would have thirty members present. Members came and went on public and personal business. The Articles Congress was meeting at the same times so members would absent themselves to New York City on Congressional business for days and weeks at a time.
But the work before them was continuous, even if attendance was not. The Convention resolved itself into a “Committee of the Whole”, and could remain so for days. It was informal, votes could be taken and retaken easily, positions could change without prejudice, and importantly, no formal quorum call was required. The nationalists were resolute. As Madison put it, the situation was too serious for despair.
They used the same State House as the Declaration signers. The building setback from the street was still dignified, but the “shaky” steeple was gone. The summer was hot, but city hand-pump wells were nearby. Flies were thick and nearby building construction made the street noisy. Sessions followed the customary six-day work week. Breakfast was before sunup. The Hall was still cool at ten, but hot by noon. Delegates sweltered in the closed room for secrecy, sentries kept passers-by from under the windows. After three, Delegates usually adjourned for
dinnerDinner is usually the name of the main meal of the day. Depending upon culture, dinner may be the second, third or fourth meal of the day. Originally, though, it referred to the first meal of the day, eaten around noon, and is still occasionally used for a noontime meal, if it is a large or main...
, or escaped into the green countryside, or along miles of riverside quays for offshore breezes. When they adjourned each day, they lived in nearby lodgings, as guests, roomers or renters. They ate supper with one another in town and taverns, “often enough in preparation for tomorrow’s meeting.”
national plans v. federal plans
re-constitution of a republican legislature |
|
Delegates reporting to the Convention presented their credentials to the Secretary, Major
William JacksonWilliam Jackson was a figure in the American Revolution, most noteworthy as the secretary to the United States Constitutional Convention. He also served with distinction in the Continental Army during the Revolutionary War...
of South Carolina. The state legislatures of the day used these occasions to say why they were sending representatives abroad. New York thus publically enjoined its members to pursue all possible “alterations and provisions” for good government and “preservation of the Union”. New Hampshire called for “timely measures to enlarge the powers of Congress”. Virginia stressed the “necessity of extending the revision of the federal system to all its defects”.
On the other hand, Delaware categorically forbade any alteration of the Articles one-state, equal vote, one-vote-only provision in the Articles Congress. The Convention would have a great deal of work to do to reconcile the many expectations in the chamber. At the same time, delegates wanted to finish their work by fall harvest and its commerce.
Current knowledge of drafting the Constitution comes primarily from the Journal left by
James MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
, It can be found chronologically incorporated in “The Records of the Federal Convention of 1787”, edited by
Max FarrandMax Farrand, Ph.D. was an American university professor and writer of history. He was born in Newark, New Jersey, United States. He graduated from Princeton Max Farrand, Ph.D. (March 29, 1869 – June 17, 1945) was an American university professor and writer of history. He was born in Newark, New...
, available online. The source documents are organized by date including those from the Convention Journal,
Rufus KingRufus King was an American lawyer, politician, and diplomat. He was a delegate for Massachusetts to the Continental Congress. He also attended the Constitutional Convention and was one of the signers of the United States Constitution on September 17, 1787, in Philadelphia, Pennsylvania...
(Ma), and
James McHenryJames McHenry was an early American statesman. McHenry was a signer of the United States Constitution from Maryland and the namesake of Fort McHenry...
(Md), along with later Anti-federalists
Robert YatesRobert Yates was a politician and judge well known for his Anti-Federalist stances. He is also well known as the presumed author of political essays published in 1787 and 1788 under the pseudonyms "Brutus" and "Sydney"...
(NY), and William Paterson (NJ). Farrand corrects errors among revisions that Madison made to his Journal while in his seventies.
The
Virginia PlanThe Virginia Plan was a proposal by Virginia delegates, for a bicameral legislative branch. The plan was drafted by James Madison while he waited for a quorum to assemble at the Constitutional Convention of 1787...
proposed by Governor
Edmund RandolphEdmund Jennings Randolph was an American attorney, the seventh Governor of Virginia, the second Secretary of State, and the first United States Attorney General.-Biography:...
(Va) was the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. Provisions of this "Randolph Plan" including the following:
(1) A
bicameralIn the government, bicameralism is the practice of having two legislative or parliamentary chambers. Thus, a bicameral parliament or bicameral legislature is a legislature which consists of two chambers or houses....
legislatureA legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
of a
HouseThe United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
proportioned to population and variable state representation in a
SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
(2) An
executiveExecutive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
chosen by the national legislature, (3) A
judiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, with life-terms of service and vague powers, (4) The national legislature would be able to
vetoA veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
state laws.
An alternative proposal, William Paterson's
New Jersey PlanThe New Jersey Plan was a proposal for the structure of the United States Government proposed by William Paterson at the Constitutional Convention on June 15, 1787...
, contained proposals geared toward smaller states: (1) A
unicameralIn government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...
national legislature with each state legislature sending an equal number to represent it, (2) An executive branch appointed by the legislature, and (3) A judicial branch appointed by the executive.
Slavery in debate
The contentious issue of slavery was too controversial to be resolved during the Convention. The issue of slavery, although always an undercurrent during deliberations and side-discussions, was at center stage in the Convention three times, June 7 regarding who would vote for Congress, June 11 in debate over how to proportion relative seating in the ‘house’, and August 22 relating to commerce and the future wealth of the nation.
slavery issue in Convention:
regulation, not abolition |
|
Eighteenth Century America had the widest franchise of any nation of the world. But it was a society of its time. Property gave a man “a stake in society, made him responsible, worthy of a voice, and with enough taxable property, eligible for office holding. Many could vote because most property was held as family farms. Though a substantial part of wealthy white America rested on slavery as property, the Convention met, not to reform society, but to create government for society as it existed. In determining who should vote, the property requirements among the states could not be reconciled. Pennsylvania, Delaware and New Hampshire were already for abolishing property requirements. To allow all states their own rules of suffrage, the Constitution was written with no property requirements. Slavery was taken out of that equation after the debate June 7.
Once the Convention turned to how to proportion the House representation, tempers among several delegates exploded over slavery again. If the number of seats depended on wealth, Pierce Butler (SC) wanted to include slaves. Elbridge Gerry (Ma) answered that the South could not have it both ways, if slaves were property and to be counted for Congress, then the North could count horses and cows. The attacks turned pointedly personal. Benjamin Franklin (Pa) interrupted with a speech about dividing up Pennsylvania so state populations were more nearly equal. He took some time. No vote was taken, tempers cooled, and the three-fifths non-free population count proposed by J. Wilson (Pa) passed using the Articles Congress “federal ratio”.
On August 6, the Committee of Detail reported its revisions to the Randolph Plan. A preamble was drafted. Delegates turned their thoughts to political economy that might best secure the public welfare and general happiness in the long run, for posterity. Again the question of slavery came up, and again it was met with attacks of moral outrage, relative poverty of the whites, and they were answered by appeals to local wealth by local means, and southern delegates inability to carry ratification in their states if slavery were threatened. By August 22, the delegates wove a web of mutual compromises relating to commerce and trade, north and south, port-states and landlocked, slave-holding, and free, relating to navigation laws, import taxes, population counts, national regulation of western territories and trade on the Mississippi. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only if there were national majorities for it both among the states in the 'senate' and among the people in the 'house', when it came time, then. Later generations could try out their own answers. The delegates were trying to make a government that might last that long.
The Constitution’s Section 9 of Article I allowed the continued “migration” of the free or “importation” of indentures and slaves as the states chose, defining slaves as persons, not property. Article 1, section 2, provided for long-term power to flow to states with increasing population, away from those decreasing. That change would be counted in a census every ten years. Apportionment in the House of Representatives would not be by any wealth as initially allowed in the Randolph Plan. It would be representing people, the count to be made of the free citizens and other persons. To the whole number of men and women, free and indentured, would be added “three-fifths” the number of “other persons”, meaning propertyless slaves and taxed Indian farming families.
Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. As the date neared in 1806, President
Thomas JeffersonThomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
sent a message to the House and Senate congratulating the
9th Congress- Senate :* President: George Clinton * President pro tempore: Samuel Smith - House of Representatives :* Speaker: Nathaniel Macon -Members:This list is arranged by chamber, then by state...
on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade which was perpetrating “violations of human rights … on the unoffending inhabitants of Africa”. Signed into law March 3, 1807, The "Act Prohibiting Importation of Slaves" took effect the fist instant the Constitution allowed, January 1, 1808. The United States would join the British Parliament, that year in the first “international humanitarian campaign”.
Just as the abolitionist
George MasonGeorge Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
refused to sign the Constitution, in the ratification conventions of Massachusetts and Virginia, the anti-slavery delegates began as anti-ratification votes. Still, the Constitution "as written" was an improvement over the Articles from an abolitionist point of view. In the Massachusetts Ratification Convention, Federalist anti-slavery delegate
Isaac BackusIsaac Backus was a leading Baptist preacher during the era of the American Revolution who campaigned against state-established churches in New England....
confronted abolitionist Anti-Federalist
Thomas DawesThomas Dawes was a Patriot who served as a Massachusetts militia colonel during the American Revolution and afterward assumed prominent positions in Massachusetts's government. His positions included state councilor, member of the Academy of Arts and Sciences, and representative in both the House...
. Trying to gain his support for adoption, he reasoned that the Constitution provided for abolition of the slave trade but the Articles did not. Sometimes those opposed to slavery were persuaded that the evils of a broken Union would bring worse consequences than allowing the fate of slavery to be determined gradually over time. Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia’s Ratification Convention, Federalist
George NicholasGeorge Nicholas was the first professor of law at Transylvania University in Kentucky. He was also briefly attorney general of Kentucky, and had been several times a member of the Virginia House of Delegates. He was the son of Robert C. Nicholas, Sr.; his brothers included Wilson Cary Nicholas...
dismissed fears on both sides. Objections to the Constitution were inconsistent, “At the same moment it is opposed for being
promotiveIn the history of slavery in the United States, "fugitive slaves" were slaves who had escaped from their master to travel to a place where slavery was banned or illegal. Many went to northern territories including Pennsylvania and Massachusetts until the Fugitive Slave Act of 1850 was passed...
and
destructiveAbolitionism is a movement to end slavery.In western Europe and the Americas abolitionism was a movement to end the slave trade and set slaves free. At the behest of Dominican priest Bartolomé de las Casas who was shocked at the treatment of natives in the New World, Spain enacted the first...
of slavery!” But the contradiction was never resolved peaceably, and the failure to do so contributed to the
Civil WarThe American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
.
"Great Compromise"
Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention. Arriving right behind the nationalist leaders on May 30, Sherman was reported to prefer a “patch up” of the existing Confederacy. Another small state delegate, George Read (DE) agreed with the nationalists that state legislatures were a national problem. But rather than see larger states overshadow the small, he’d prefer to see all state boundaries erased. Big-state versus small-state antagonisms hardened early.
On June 11, Roger Sherman proposed his first version of the Convention’s “Great Compromise”. It was like the proposal he made in the 1776 Continental Congress. Representation in Congress should be both by states and by population. There, he was voted down by the small states in favor of all states equal, one vote only. Now in 1787 Convention, he wanted to balance all the big-state victories for population apportionment. He proposed that in the second ‘senate’ branch of the legislature, each state should be equal, one vote and no more. Sherman argued that the bicameral British Parliament had a
House of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
equal with the
House of CommonsThe House of Commons of Great Britain was the lower house of the Parliament of Great Britain between 1707 and 1801. In 1707, as a result of the Acts of Union of that year, it replaced the House of Commons of England and the third estate of the Parliament of Scotland, as one of the most significant...
to protect their propertied interests apart from the people. He was voted down, this time by the big states. The motion for equal state representation in a ‘senate’ failed: 6 against, 5 for.
"men of original principles"
equality of the states |
|
Friday, June 15 Paterson introduced his New Jersey Plan. The “old patriots” of 1776 and the “men of original principles” had organized. Roger Sherman (Ct), a signer of the Declaration of Independence, was with them. John Lansing (NY) observed that the Paterson Plan “sustained the sovereignty of the states”, while that of Mr. Randolph destroyed state sovereignty in a national, consolidated government. William Paterson (NJ) attacked the nationalists. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. James Wilson (PA) answered, The Convention could not conclude anything, but it could recommend anything.
Lansing (NY) had objected that if the New York legislature knew anything about proposals for consolidated government, it would not have sent anyone. Edmund Randolph (Va) countered, With the salvation of the American republic at stake, it would be treason to withhold any proposal believed necessary for good government and the Union. Three sessions after its introduction, Paterson’s plan was off the table. It failed : 7 against, 3 for, 1 divided. For nearly a month there was no progress; small states were seriously thinking of walking out of the Convention.
In a related resolution, the "original principles" men won a victory on June 25. The ‘senate’ would be chosen by the state legislatures, not the people, passed: 9 for, 2 against. On June 27, the basis of representation for both the ‘house’ and the ‘senate’ re-surfaced. Roger Sherman (Ct) tried a second time to get his idea for a ‘house’ on the basis of population and a ‘senate’ on an equal states basis. The big state delegates beat him again. The 'house' would be chosen directly by the population voting. On the motion for equal state representation in the 'senate', the majority simply adjourned “before a determination was taken in the House.” Luther Martin (Md) insisted that he would rather live under a regional government than submit to a United States under the Randolph Plan.
Sherman’s proposal came again two days later for the third time from Oliver Ellsworth (CT). In the ‘senate’, the states should have equal representation. If this cannot be agreed to, somehow, the union of states would end up separated. Wilson (Pa) countered, the purpose of population apportionment was not to make big states powerful, it was to “tear down a rotten house” of equal state representation. Gunning Bedford (DE) spoke hotly, “I do not, gentlemen, trust you.” If the equal-state principle was lost, the small states could confederate with a foreign power showing “more good faith”. Elbridge Gerry (MA) warned, If the states cannot unite themselves, being conquered by “some foreign sword will probably do the work for us”. On June 29, the majority running things, the Convention adjourned “before a determination was taken in the House.” on the question of equal state representation.
On July 2, the Convention for the fourth time considered a ‘senate’ with equal state votes. This time a vote was taken, but it stalled again, tied at 5 yes, 5 no, 1 divided. The Convention elected one delegate from each state onto a Committee to make a proposal; it reported July 5. Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest. No direct vote on the basis of ‘senate’ representation was pushed on the floor for another week.
But the first new ‘house’ seat apportionment was agreed, balancing big and small, north and south. The big states got a decennial census for 'house' apportionment to reflect their future growth. Northerners had insisted on counting only free citizens for the ‘house’; southern delegations wanted to add property. Benjamin Franklin's compromise was that there would be no “property” provision to add representatives, but states with large slave populations would get a bonus added to their free persons by counting three-fifths other
persons.
On July 16, Sherman’s “Great Compromise” prevailed on its fifth try. Every state was to have equal numbers in the United States Senate. Washington ruled it passed on the vote 5 yes, 4 no, 1 divided, using precedent established in the Convention earlier. Now some of the big-state delegates talked of walking out, but none did. Debate over the next ten days developed an agreed general outline for the Constitution. Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan.
Two new branches
The Constitution innovated two branches of government that were not a part of the U.S. government during the Articles of Confederation. Previously, a thirteen member committee had been left behind when Congress adjourned to carry out the "executive" functions. Suits between states were referred to the Articles Congress, and treated as a private bill to be determined by majority vote of members attending that day.
| President, the national "chief magistrate" |
|
On June 7, the “national executive” was taken up in Convention. The “chief magistrate”, or ‘presidency’ was of serious concern for a formerly colonial people fearful of concentrated power in one person. But to secure a "vigorous executive", nationalist delegates such as James Wilson (Pa), Charles Pinckney (SC), and John Dickenson (De) favored a single officer. They had someone in mind whom everyone could trust to start off the new system, George Washington.
After introducing the item for discussion, there was a prolonged silence. Benjamin Franklin (Pa) and John Rutledge (SC) had urged everyone to speak their minds freely. When addressing the issue with George Washington in the room, delegates were careful to phrase their objections to potential offenses by officers chosen in the future who would be 'president' "subsequent" to the start-up. Roger Sherman (Ct), Edmund Randolph (Va) and Pierce Butler (SC) all objected, preferring two or three persons in the executive, as had the ancient Roman Republic.
Nathaniel Gorham was Chair of the Committee of the Whole. The vote for a one-man ‘presidency’ carried 7-for, 3-against, New York, Delaware and Maryland in the negative. George Washington, sitting in the Virginia delegation, voted yes. With that vote for a single ‘presidency’, George Mason (Va) gravely considered the Confederation’s “federal government as in some measure dissolved by the meeting of this Convention.”
| Judiciary, the national court(s) |
|
The Convention was following the Randolph Plan, taking each resolve in turn when it moved forward. They returned to items when overnight coalitions required adjustment to previous votes to secure a majority on the next item of business. June 19, the Ninth Resolve on the national court system, and the nationalist proposal for the inferior (lower) courts.
Pure 1776 republicanism had not given much credit to judges, who would set themselves up apart from and sometimes contradicting the state legislature, the voice of the sovereign people. Under the precedent of English Common Law according to
William BlackstoneSir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, the legislature, following proper procedure, was for all constitutional purposes, “the people.” This dismissal of unelected officers sometimes took an unintended turn among the people. One of John Adams clients believed the First Continental Congress in 1775 had assumed the sovereignty of Parliament, and so abolished all previously established courts in Massachusetts.
In the Convention, looking at a national system, Judge Wilson (Pa) sought appointments by a single person to avoid legislative payoffs. Judge Rutledge (SC) was against anything but one national court, a Supreme Court to receive appeals from the highest state courts, like the South Carolina court he presided over as Chancellor. Rufus King (Ma) thought national district courts in each state would cost less than appeals that otherwise would go to the ‘supreme court’ in the national capital. National inferior courts passed but making appointments by ‘congress’ was crossed out and left blank so the delegates could take it up later after “maturer reflection.”
Re-allocate power
The Constitutional Convention created a new, unprecedented form of government by reallocating powers of government. Every previous national authority had been either a centralized government, or a “confederation of sovereign constituent states.” The American power-sharing was unique at the time. The sources and changes of power were up to the states. The foundations of government and extent of power came from both national and state sources. But the new government would have a national operation. To meet their goals of cementing the Union and securing citizen rights, Framers allocated power among executive, senate, house and judiciary of the central government. But each and every state government in their variety continued exercising powers in their own sphere.
Increase Congress
The Convention did not start with national powers from scratch, it began with the powers already vested in the Articles Congress with control of the military, international relations and commerce. The Constitution added ten more. Five were minor relative to power sharing, including business and manufacturing protections. One important new power authorized Congress to protect states from the “domestic violence” of
riotA riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...
and
civil disorderCivil disorder, also known as civil unrest or civil strife, is a broad term that is typically used by law enforcement to describe one or more forms of disturbance caused by a group of people. Civil disturbance is typically a symptom of, and a form of protest against, major socio-political problems;...
, but it was conditioned by a state request.
The Constitution increased Congressional power to organize, arm and discipline the state militias, to use them to enforce the laws of Congress, suppress rebellions within the states and repel invasions. But the
Second AmendmentThe Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
would ensure that Congressional power could not be used to disarm state militias.
TaxationThe United States is a federal republic with autonomous state and local governments. Taxes are imposed in the United States at each of these levels. These include taxes on income, property, sales, imports, payroll, estates and gifts, as well as various fees.Taxes are imposed on net income of...
substantially increased the power of Congress relative to the states. It was limited by restrictions, forbidding taxes on exports, per capita taxes, requiring import duties to be uniform and that taxes be applied to paying U.S. debt. But the states were stripped of their ability to levy taxes on imports, which was at the time, “by far the most bountiful source of tax revenues”.
Congress had no further restrictions relating to
political economyPolitical economy originally was the term for studying production, buying, and selling, and their relations with law, custom, and government, as well as with the distribution of national income and wealth, including through the budget process. Political economy originated in moral philosophy...
. It could institute protective
tariffA tariff may be either tax on imports or exports , or a list or schedule of prices for such things as rail service, bus routes, and electrical usage ....
s, for instance. Congress overshadowed state power regulating
interstate commerceThe Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
; the United States would be the “largest area of free trade in the world.” The most undefined grant of power was the power to “make laws which shall be necessary and proper for carrying into execution” the Constitution’s enumerated powers.
Limit governments
As of ratification, sovereignty was no longer to be theoretically indivisible. With a wide variety of specific powers among different branches of national governments and thirteen republican state governments, now "each of the
portions of powers delegated to the one or to the other … is … sovereign
with regard to its proper objects". There were some powers that remained beyond the reach of both national powers and state powers, so the logical seat of American “sovereignty” belonged directly with the people-voters of each state.
Besides expanding Congressional power, the Constitution limited states and central government. Six limits on the national government addressed property rights such as slavery and taxes. Six protected liberty such as prohibiting
ex post factoAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
laws and no
religious testThe Test Act of 1673 in England obligated all persons filling any office, civil or military, to take oaths of supremacy and allegiance, to subscribe to a declaration against transubstantiation, and to receive the sacrament within three months of taking office....
s for national offices in any state, even if they had them for state offices. Five were principles of a republic, as in legislative
appropriationIn law and government, appropriation is the act of setting apart something for its application to a particular usage, to the exclusion of all other uses....
. These restrictions lacked systematic organization, but all constitutional prohibitions were practices that the British Parliament had “legitimately taken in the absence of a specific denial of the authority.”
The regulation of state power presented a “qualitatively different” undertaking. In the state constitutions, the people did not enumerate powers. They gave their representatives every right and authority not explicitly reserved to themselves. The Constitution extended the limits that the states had previously imposed upon themselves under the Articles of Confederation, forbidding taxes on imports and disallowing treaties among themselves, for example.
In light of the repeated abuses by
ex post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s passed by the state legislatures, 1783-1787, the Constitution prohibited ex post facto laws and bills of attainder to protect United States citizen property rights and right to a fair trial. Congressional power of the purse was protected by forbidding taxes or restraint on interstate commerce and foreign trade. States could make no law “impairing the obligation of contracts.” To check future state abuses the framers searched for a way to review and veto state laws harming the national welfare or citizen rights. They rejected proposals for Congressional veto of state laws and gave the Supreme Court appellate case jurisdiction over state law because the Constitution is the supreme law of the land. The United States had such a geographical extent that it could only be safely governed using a combination of republics. Federal judicial districts would follow those state lines.
Population power
The British had relied upon a concept of “virtual representation” to give legitimacy to their House of Commons. It was not necessary to elect anyone from a large port city, or the American colonies, because the representatives of “rotten boroughs”, the mostly abandoned medieval fair towns with twenty voters, "virtually represented" thriving mercantile ports such as Birmingham’s tens of thousands. Philadelphia in the colonies was second in population only to London.
They were all Englishmen, supposed to be a single people, with one definable interest. Legitimacy came from membership in Parliament of the sovereign realm, not elections from people. As Blackstone explained, the Member is “not bound … to consult with, or take the advice, of his constituents.” As Constitutional historian Gordon Wood elaborated, “The Commons of England contained all of the people’s power and were considered to be the very persons of the people they represented.”
While the English “virtual representation” was hardening into a theory of Parliamentary sovereignty, the American theory of representation was moving towards a theory of sovereignty of the people. In their new constitutions written since 1776, Americans required community residency of voters and representatives, expanded suffrage, and equalized populations in voting districts. There was a sense that representation “had to be proportioned to the population.” The Convention would apply the new principle of "sovereignty of the people" both to the House of Representatives, and to the United States Senate.
House changes. Once the Great Compromise was reached, delegates in Convention then agreed to a decennial census to count the population. The Americans themselves did not allow for universal suffrage for all adults. Their sort of "virtual representation" said that those voting in a community could understand and themselves represent non-voters when they had like interests that were unlike other political communities. There were enough differences among people in different American communities for those differences to have a meaningful social and economic reality. Thus New England colonial legislatures would not tax communities which had not yet elected representatives. When the royal governor of Georgia refused to allow representation to be seated from four new counties, the legislature refused to tax them.
The 1776 Americans had begun to demand expansion of the franchise, and in each step, they found themselves pressing towards a philosophical “actuality of consent.” The Convention determined that the power of the people, should be felt in the House of Representatives. Regardless of state heritage, militias or amassed wealth they would be counted, increasing and decreasing in their state communities. They would be counted by populations every ten years, the decennial census.
Senate changes. The Convention found that it was harder trying to give expression to the will of the people in new states. Virginia Resolves ‘ten’ was agreed to without dissent, “that provision ought to be made for the admission of States lawfully arising within the limits of the United States.” Then the debate began as to what state, if any, might be “lawfully arising” states outside the boundaries of the existing confederated thirteen states.
new states or provinces forever
for the people moving into new territory |
|
The new government was like the old, to be made up of pre-existing states. Now there was to be admission of new states. Regular order would provide new states by state legislatures for Kentucky out of Virginia, Tennessee from North Carolina, Maine of Massachusetts. But the Articles Congress by its Northwest Ordnance presented the Convention another issue by its promise to settlers in the Northwest Territory. Land was sold to them by contract, they were to have all rights of U.S. citizenship, and they might one day constitute themselves into “no more than five” states. More difficult still, most delegates anticipated adding alien peoples of Canada, Louisiana and Florida to United States territory.
G. Morris (Pa) was reluctant to expand into any so “remote wilderness”, it would retard the commercial development of the east. Western peoples were the least desirable, least governable he knew. He would bar them from statehood forever, make them into perpetual provinces. He did not have the votes in Convention, but he made it possible in the future by giving Congress power to regulate and dispose of U.S. territory or other property. For Elbridge Gerry (Ma), any new unknown states could be a majority in the Senate when they outnumbered the original thirteen states, and that would be intolerable. They would feel their power and abuse it, they would “enslave” the original thirteen. They would come “under some foreign influence” like the Spanish funded the Creek Indians to attack the east, and the British funded the Iroquois. “Foreign gold” would corrupt their state legislatures.
On his return home, Luther Martin (Md) argued that westerners could not reasonably tolerate suffering under the dominance of eastern states. They would be justified in civil war to “shake off so ignominious a yoke.” G. Morris (Pa) had it that if they were allowed to be states, westerners would drag the country into an inevitable war with Spain for the Mississippi River, involving the whole continent. These were poor people. How could they pay their fair share of taxes to the Union, or even pay for their own militia to defend against Amerindian nations? Were there to be so many western states that these poor and ignorant would outvote the eastern maritime states in the Senate? The east needed a way to protect its own interest, Nathaniel Gorham (Ma) suggested giving out representation to the west only as it suited the east. George Clymer (Pa), an “old patriot” of ’76, thought the whole western state idea was “suicide” for the original states. Roger Sherman (Ct) countered that the people of the west would be “our children and our grandchildren.” Elbridge Gerry (Ma) retorted some of those grandchildren would be left behind, and they had interests too. There were so many foreigners moving out west, it could not be certain how things would turn out.
East-west jealousies were very much alive in the Convention. Delegates knew of them and benefitted from them. In Pennsylvania, Virginia and the Carolinas, state legislatures enshrined inequality of east-west representation in their state constitutions. Massachusetts and New York had in their past. Virginia's Thomas Jefferson, absent the Convention, would complain that it took 15 voting men west of the Blue Ridge Mountains to equal one man east. Representative pportionment for states with a western “back-country” was a mix of population, voters and property. That status quo was captured in the original Randolph Plan for apportionment by “population or property” for both the ‘house’ and the ‘senate’. Instead, the Convention chose a formula for representing people as in a democracy. The demographic world of the states was changing underfoot. Populations were rapidly deploying west in such numbers, that delegates from Rhode Island and Massachusetts complained of the persistent interest in westward expansion.
But in the light of the debate over new states from western territories, delegates had pause over the number agreed to for House representation, 40,000 might be too small, too easy for the westerners. “States” had been declared out west already. They called themselves republics, and set up their own courts directly from the people without colonial charters from the sovereign states. In Transylvania, Westsylvania, Franklin, Vandalia, “legislatures” met with emissaries from British and Spanish Empires in violation of the Articles of Confederation, just as the sovereign states had done. Luther Martin (Md) stopped that claim by ensuring that the United States owned all the backlands ceded by the states. He was successful in delivering a provision in the final draft of the Constitution, no majorities in Congress could break up the larger states without their consent.
James Wilson (Pa) had no fear of western states achieving a majority one day. The majority should rule. The British were jealous of our growth, and sought to curb it. That brought our hate, then our separation. If we follow the same rule, we will get the same results. Congress has never been able to discover a better rule than majority rule. Madison (Va) was of the “firm opinion” that there could be no discrimination against the west. And as they grow, all their trade goes by New Orleans. Imposts will more surely be collected there. Until then, they must get all their supplies from eastern businesses. Character is not determined by points of a compass. States admitted are equals, they will be made up of our brethren. George Mason (Va) reasoned that we must commit to right principles, even if the right way one day benefits other states. They will be free like ourselves, their pride will not allow anything but equality. It was at this time in the Convention that Reverend Manasseh Cutler arrived to lobby for what he had won in the Articles Congress. He has secured guaranteed protection of contracts in western land sales. He brought acres of land grants to parcel out. Their sales would fund most of the U.S. government expenditures for its first few decades. There were allocations for the Ohio Company stockholders at the Convention, and for others delegates too. In December, 1787, good to his word, Cutler led a small band of pioneers into the Ohio Valley.
The provision for admitting new states became relevant at the purchase of Louisiana It was constitutionally justifiable under the "Treaty Making" power of the Federal government. The agrarian advocates sought to make the purchase of land that had never been administered, conquered, or formally ceded to any of the original thirteen states. Jefferson’s Democratic-Republicans would divide the Louisiana Purchase into states, speeding land sales to finance the Federal government with no new taxes. There would be no war for the possession of the Mississippi River. The new populations of new states would swamp the commercial states in the Senate. They would populate the House with egalitarian Democrat-Republicans to overthrow the Federalists. Jefferson dropped the proposal of Constitutional Amendment to permit the Purchase, and with it, his notion of a confederation of sovereign states.
Adoption and beginning
On September 17, 1787, the Constitution was completed, followed by a speech given by
Benjamin FranklinDr. Benjamin Franklin was one of the Founding Fathers of the United States. A noted polymath, Franklin was a leading author, printer, political theorist, politician, postmaster, scientist, musician, inventor, satirist, civic activist, statesman, and diplomat...
. Franklin urged unanimity, although the Convention had decided only nine state ratification conventions were needed to inaugurate the new government. The Convention submitted the Constitution to the
Congress of the ConfederationThe Congress of the Confederation or the United States in Congress Assembled was the governing body of the United States of America that existed from March 1, 1781, to March 4, 1789. It comprised delegates appointed by the legislatures of the states. It was the immediate successor to the Second...
.
ratification conventions in the states
more nearly "the people" |
|
Massachusetts’s
Rufus KingRufus King was an American lawyer, politician, and diplomat. He was a delegate for Massachusetts to the Continental Congress. He also attended the Constitutional Convention and was one of the signers of the United States Constitution on September 17, 1787, in Philadelphia, Pennsylvania...
assessed the Convention as a creature of the states, independent of the Articles Congress, submitting its proposal to Congress only to satisfy forms. Though amendments were debated, they were all defeated. On September 28, 1787, the Articles Congress resolved “unanimously” to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure. Several states enlarged the numbers qualified just for electing ratification delegates. In doing so, they went beyond the Constitution's provision for the most voters for the state legislature to make a new social contract among, more nearly than ever before, "We, the people".
Following Massachusetts's lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments. A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s
Luther MartinLuther Martin was a politician and one of United States' Founding Fathers, who refused to sign the Constitution because he felt it violated states' rights...
argued that the federal convention had exceeded its authority; he still called for amending the Articles. Article 13 of the Articles of Confederation stated that the union created under the Articles was "perpetual" and that any alteration must be "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State".
However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s
John Lansing, Jr.John Ten Eyck Lansing, Jr. , was an American lawyer and politician. He was the uncle of Gerrit Y. Lansing.-Career:...
, dropped moves to obstruct the Convention's process. They began to take exception to the Constitution “as it was”, seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. New York Anti’s “circular letter” was sent to each state legislature proposing a second constitutional convention for "amendments before". It failed in the state legislatures. Ultimately only North Carolina and Rhode Island would wait for amendments from Congress before ratifying.
Ratification of the Constitution
-- dates, states and votes -- |
| |
Date |
State |
Votes |
| Yes |
No |
| 1 |
December 7, 1787 |
Delaware Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
|
30 |
0 |
| 2 |
December 11, 1787 |
PennsylvaniaThe Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
|
46 |
23 |
| 3 |
December 18, 1787 |
New JerseyNew Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
|
38 |
0 |
| 4 |
January 2, 1788 |
GeorgiaGeorgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
|
26 |
0 |
| 5 |
January 9, 1788 |
ConnecticutConnecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
|
128 |
40 |
| 6 |
February 6, 1788 |
MassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
|
187 |
168 |
| 7 |
April 26, 1788 |
MarylandMaryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
|
63 |
11 |
| 8 |
May 23, 1788 |
South CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
|
149 |
73 |
| 9 |
June 21, 1788 |
New Hampshire New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
|
57 |
47 |
| 10 |
June 25, 1788 |
VirginiaThe Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
|
89 |
79 |
| 11 |
July 26, 1788 |
New YorkNew York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
|
30 |
27 |
| 12 |
November 21, 1789 |
North CarolinaNorth Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
|
194 |
77 |
| 13 |
May 29, 1790 |
Rhode IslandThe state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
|
34 |
32 |
Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect for the participating states. After a year had passed in state-by-state ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March, and on March 4, 1789, the
governmentThe federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
duly began operations.
George WashingtonGeorge Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
had earlier been reluctant to go the Convention for fear the states “with their darling sovereignties” could not be overcome. But he was elected the Constitution's President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist
Patrick HenryPatrick Henry was an orator and politician who led the movement for independence in Virginia in the 1770s. A Founding Father, he served as the first and sixth post-colonial Governor of Virginia from 1776 to 1779 and subsequently, from 1784 to 1786...
. The new Congress was a triumph for the Federalists. The Senate of eleven states would be 20 Federalists to two Virginia (Henry) Anti-federalists. The House would seat 48 Federalists to 11 Antis from only four states: Massachusetts, New York, Virginia and South Carolina.
Antis' fears of personal oppression by Congress were allayed by Amendments passed under the floor leadership of
James MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
in the first session of the first Congress. These first ten Amendments became known as the
Bill of RightsA bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. Objections to a potentially remote federal judiciary were reconciled with 13 federal courts (11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South. Suspicion of a powerful federal executive was answered by Washington’s cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and
Thomas JeffersonThomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
as Secretary of State.
What Constitutional historian
Pauline MaierPauline Maier is a popular scholar of the American Revolution, the preceding era and post-revolutionary United States. She is the William R. Kenan Jr. Professor of American History at the Massachusetts Institute of Technology ....
calls a national “dialogue between power and liberty” had begun anew.
Fundamental law
Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.
| rule of law by Enlightenment and Common Law |
|
The
due processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause of the Constitution was partly based on
common lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
stretching back to
Magna CartaMagna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
(1215). The document established the principle that the Crown's powers could be limited.
The "law of the land" was the King in Parliament of Lords and Commons. The once sovereign King was to be bound by law. Magna Carta as "sacred text" would become a foundation of English liberty against arbitrary power wielded by a tyrant.
Both the influence of Edward Coke and William Blackstone were evident at the Convention.
In his Institutes of the Laws of England,
Edward CokeSir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects of the Crown equally. Coke extended this principle overseas to colonists. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England.
William BlackstoneSir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
saw the Parliament as legislature, the representative of the people, and so sovereign over judges in equity law. In his "
Commentaries on the Laws of EnglandThe Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
" discussing cases, where ruling judges provided no rationale, he wrote one so as to connect and relate law and cases to one another in a way that had not been done so extensively before. "Commentaries" were the most influential books on law in the new republic among both lawyers generally and judges.
The most important influence from the European continent was from Enlightenment thinkers John Locke and the brilliant Montesquieu.
British political philosopher
John LockeJohn Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
following the Glorious Revolution was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his "
Two Treatises of GovernmentThe Two Treatises of Government is a work of political philosophy published anonymously in 1689 by John Locke...
". Government's duty in a social contract with the sovereign people was to serve them by protecting their rights. These basic rights of English and by extension all humanity, were life, liberty and property.
MontesquieuCharles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...
, emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of
PolybiusPolybius , Greek ) was a Greek historian of the Hellenistic Period noted for his work, The Histories, which covered the period of 220–146 BC in detail. The work describes in part the rise of the Roman Republic and its gradual domination over Greece...
's 2nd century BC treatise on the
checks and balancesThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
of the constitution of the
Roman RepublicThe Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
.) In his "
The Spirit of the LawsThe Spirit of the Laws is a treatise on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu in 1748 with the help of Claudine Guérin de Tencin...
", Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial. The actuating spring driving an aristocracy is excellence and honor, the despot requires compliance and fear. In a democracy the activating spring is public virtue,
Division of power in a republic was informed by the
BritishThe former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
experience with
mixed governmentMixed government, also known as a mixed constitution, is a form of government that integrates elements of democracy, aristocracy, and monarchy. In a mixed government, some issues are decided by the majority of the people, some other issues by few, and some other issues by a single person...
, as well as study of republics ancient and modern. A substantial body of thought had been developed from the literature of
republicanism in the United StatesRepublicanism is the political value system that has been a major part of American civic thought since the American Revolution. It stresses liberty and inalienable rights as central values, makes the people as a whole sovereign, supports activist government to promote the common good, rejects...
, including work by
John AdamsJohn Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
. The experiences among the thirteen states after 1776 was remarkably different among those which had been charter, proprietary newly created royal colonies.
Native Americans
The
Iroquois nationsThe Iroquois , also known as the Haudenosaunee or the "People of the Longhouse", are an association of several tribes of indigenous people of North America...
' political confederacy and
democraticDemocracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
governmentGovernment refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
have been credited as influences on the
Articles of ConfederationThe Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
and the United States Constitution. Historians debate how much the colonists borrowed from existing Native American models of government. But several founding fathers had contact with Native American leaders and had learned about their styles of government.
The Iroquois Confederation could not be overlooked. They were “the most powerful Indian group on the continent.” Their government did not always work perfectly, unanimously, but they were once secure within their territory, and had been “nearly invincible” to outsiders over the lifetime of the Convention delegates.
Prominent figures such as
Thomas JeffersonThomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
in colonial Virginia and
Benjamin FranklinDr. Benjamin Franklin was one of the Founding Fathers of the United States. A noted polymath, Franklin was a leading author, printer, political theorist, politician, postmaster, scientist, musician, inventor, satirist, civic activist, statesman, and diplomat...
in colonial Pennsylvania were involved with leaders of the New York-based
Iroquois ConfederacyThe Iroquois , also known as the Haudenosaunee or the "People of the Longhouse", are an association of several tribes of indigenous people of North America...
. The English needed allies to check expanding French networks. Both Virginia and Pennsylvania colonial claims extended north and west to Iroquois territory. The English could not expand without somehow bridging the cultural differences antagonizing their Amerindian neighbors.
This concern extended the length of the English settlement, and it motived study of Amerindian culture and governance.
John RutledgeJohn Rutledge was an American statesman and judge. He was the first Governor of South Carolina following the signing of the Declaration of Independence, the 31st overall...
of
South CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
in particular is said to have read lengthy tracts of Iroquoian law to the other framers in Convention, beginning with the words, "We, the people, to form a union, to establish peace, equity, and order..."
Even in the 1750s and at the
Albany CongressThe Albany Congress, also known as the Albany Conference and "The Conference of Albany" or "The Conference in Albany", was a meeting of representatives from seven of the thirteen British North American colonies in 1754...
, Benjamin Franklin had seen that no single English colony could effectively deal with Amerindian tribes or expand against the ever-present
FrenchThe French colonization of the Americas began in the 16th century, and continued in the following centuries as France established a colonial empire in the Western Hemisphere. France founded colonies in much of eastern North America, on a number of Caribbean islands, and in South America...
. Franklin argued that there should be some sort of diplomatic and self-defense concert among the British colonies. “If the Iroquois could form a powerful union … some kind of union ought not to be beyond the capacity of a dozen English colonies.”
The delegates meeting at Albany were unable to align the independent assemblies that they represented. But seeing the dangers before them, they made recommendations outside proper channels, going over the heads of the colonial legislatures. The Albany Congress went directly to the sovereign Parliament. In this they exceeded their authority, “like those who met at Philadelphia in 1787 would,” when the Constitutional Convention bypassed the independent state legislatures and appealed directly to the sovereign people.
The Iroquois experience with confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive control over the constituent members. This decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from “too much democracy,” among their national parts. Their long term welfare suffered at the hands of French and English
intrigueIntrigue is a Sámi band formed in 1989 in Kárášjohka Karasjok, Norway, that sings in North Sami and English.- Intrigue 1994 :# Is This The End# Revolution# Star In The Night# Iešjávre luntat# Angel Heart# Need Your Love# Liar# Voodoo Child# Orbin...
s fostered among each separate Iroquois nation.
The new United States faced a diplomatic and military world inhabited by the same Europeans. During the Articles period, individual states had been making separate agreements with European and Amerindian foreign nations apart from Congress. Without the Convention's central government, the framer's feared that the fate of the confederated Articles United States would be the same as the Iroquois Confederacy.
But in its experiment of national self-governance, the Convention relied on past and present. The Constitution used Iroquois and Greek forms of government, Roman and English Common Law, philosophies of republics and the Enlightenment. To commemorate the contribution of Iroquois forms of government to American fundamental law, in October 1988, the U.S. Congress passed Concurrent Resolution 331 to recognize the influence of the Iroquois Constitution upon the U.S. Constitution and Bill of Rights.
Bills of rights before
The
United States Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
consists of the ten amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788. The English
Bill of Rights (1689)The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
was an inspiration for the American Bill of Rights. Both require
jury trialA jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
s, contain a right to keep and bear arms, prohibit excessive
bailTraditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
and forbid
"cruel and unusual punishments."Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
Many liberties protected by state constitutions and the
Virginia Declaration of RightsThe Virginia Declaration of Rights is a document drafted in 1776 to proclaim the inherent rights of men, including the right to rebel against "inadequate" government...
were incorporated into the Bill of Rights.
Original text
The Constitution consists of a preamble, seven original articles,
twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.
Authority and purpose
Legislature
| 19th Century Growth - government housing its branches |
|
Article One describes the
CongressThe United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, the
legislative branchA legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the
House of RepresentativesThe United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and the
SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
.
The article establishes the manner of
electionThe United States has a federal government, with elected officials at the federal , state and local levels. On a national level, the head of state, the President, is elected indirectly by the people, through an Electoral College. In modern times, the electors virtually always vote with the popular...
and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.
Article I, Section 1, reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This provision gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.
Article I Section 8 enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch:
The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.