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Ratification of the United States Constitution

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Ratification of the United States Constitution

The United States Constitution was written in 1787 during the Philadelphia Convention. After ratification in eleven states, in 1789 its elected officers of government assembled in New York City, replacing the earlier 1781 Articles of Confederation government. Following its establishment, the original Constitution has been amended twenty-seven times. The meaning of the Constitution is interpreted and extended by judicial review in the federal courts. An original copy of the parchments is held at the National Archives Building.

Two alternative plans were developed in Convention. The nationalist majority, soon to be called “Federalists”, put forth the Virginia Plan, a consolidated government based on proportional representation among the states by population. The “old patriots”, later called “Anti-Federalists”, advocated the New Jersey Plan, a purely federal proposal, based on providing each state with equal representation. The Connecticut Compromise allowed for both plans to work together. Other controversies developed regarding slavery and a Bill of Rights in the original document.

The drafted Constitution was submitted to the Articles Congress. It in turn forwarded the Constitution as drafted to the states for ratification by the Constitutional method proposed. The Federalist Papers provided background and justification for the Constitution. Some states agreed to ratify the Constitution only if the amendments that were to become the Bill of Rights would be taken up immediately by the new government, and they were duly proposed in the first session of the First Congress.

Once the Articles Congress certified that eleven states had ratified the Constitution, elections were held, the new government began on March 4, 1789, and the Articles Congress dissolved itself. Later Amendments address individual liberties and freedoms, federal relationships, election procedures, terms of office, expanding the electorate, ending slavery, financing government, consumption of alcohol and Congressional pay. Criticism over the life of the Constitution has centered on expanding democracy and states rights.

Declaration of Independence

On June 4, 1776, a resolution was introduced in the Second Continental Congress declaring the union with Great Britain to be dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective states. Independence was declared on July 4, 1776; the preparation of a plan of confederation was postponed. Although the Declaration was a statement of principles, it did not create a government or even a framework for how politics would be carried out. It was the Articles of Confederation that provided the necessary structure to the new nation during and after the American Revolution. The Declaration, however, did set forth the ideas of natural rights and the social contract that would help form the foundation of constitutional government.

The era of the Declaration of Independence is sometimes called the “Continental Congress” period. John Adams famously estimated as many as one-third of those resident in the original thirteen colonies were patriots. Scholars such as Gordon Wood describe how Americans were caught up in the Revolutionary fervor and excitement of creating governments, societies, a new nation on the face of the earth by rational choice as Thomas Paine declared in Common Sense.

Republican government and personal liberty for “the people” were to overspread the New World continents and to last forever, a gift to posterity. Most of these were influenced by Enlightenment philosophy. The adherents to this cause seized on English Whig political philosophy as described by historian Forrest McDonald as justification for most of their changes to received colonial charters and traditions. It was rooted in opposition to monarchy they saw as venal and corrupting to the “permanent interests of the people”.

To these partisans, voting was the only permanent defense of the people. Elected terms for legislature were cut to one year, for Virginia’s Governor, one year without re-election. Property requirements for suffrage for men were reduced to taxes on their tools in some states. Free blacks in New York could vote if they owned enough property. New Hampshire was thinking of abolishing all voting requirements for men but residency and religion. New Jersey let women vote. In some states, senators were now elected by the same voters as the larger electorate for the House, and even judges were elected to one-year terms.

These “radical Whigs” were called the people “out-of-doors”. They distrusted not only royal authority, but any small, secretive group as being unrepublican. Crowds of men and women massed at the steps of rural Court Houses during market-militia-court days. Shays Rebellion is a famous example. Urban riots began by the out-of-doors rallies on the steps of an oppressive government official with speakers such as members of the Sons of Liberty holding forth in the “people’s “committees” until some action was decided upon, including hanging his effigy outside a bedroom window, or looting and burning down the offending tyrant’s home.

Articles of Confederation

The Articles of Confederation was unanimously adopted in 1781 once Maryland agreed. Over the previous four years, it had been used by Congress as a “working document” to administer the early United States government, win the Revolutionary War and secure the Treaty of Paris (1783) with Great Britain. Lasting successes during its life prior to the Constitutional Convention included the Land Ordinance of 1785 whereby Congress promised settlers west of the Appalachian Mountains full citizenship and eventual statehood.[1] Some historians characterize this period from 1781 to 1789 as weakness, dissension, and turmoil.[2] Other scholars view the evidence as reflecting an underlying stability and prosperity.[3] But signs of returning prosperity in some areas did not slow growing domestic and foreign problems. Nationalists saw that the confederation's central government was not strong enough to establish a sound financial system, regulate trade, enforce treaties, or go to war when needed.[4]

The Congress was the sole organ of the national government, without a national court to interpret law nor an executive branch to enforce them, in the states or on individuals. Governmental functions, including declarations of war and calls for an army, were supported in some degree for some time, by each state voluntarily, or not .[4] These newly independent states separated from Britain no longer received favored treatment at British ports. The British refused to negotiate a commercial treaty in 1785 because the individual American states would not be bound by it. Congress could not act directly upon the States nor upon individuals. It had no authority to regulate foreign or interstate commerce. Every act of government was left to the individual States. Each state levied taxes and tariffs on other states at will, which invited retaliation. Congress could vote itself mediator and judge in state disputes, but states did not have to accept its decisions.[4]

The weak central government could not back its policies with military strength, embarrassing it in foreign affairs. The British refused to withdraw their troops from the forts and trading posts in the new nation's Northwest Territory, as they had agreed to do in the Treaty of Paris of 1783. British officers on the northern boundaries and Spanish officers to the south supplied arms to Native American tribes, allowing them to attack American settlers. The Spanish refused to allow western American farmers to use their port of New Orleans to ship produce.[4]

Revenues were requisitioned by Congressional petition to each state. None paid what they were asked. Some funded only enough to pay interest to their own citizens. Connecticut declared it would not pay at all, not just for one year, but two. Congress appealed to the thirteen states for an amendment to the Articles to tax enough to pay the public debt as principle came due. Twelve states agreed, Rhode Island did not, so it failed.[5] The Articles required super majorities. Amendment proposals to states required ratification by all thirteen states, all important legislation needed 70% approval, at least nine states. Repeatedly, one or two states defeated legislative proposals of major importance.[4]

Without taxes the government could not pay its debt. Seven of the thirteen states printed large quantities of its own paper money, backed by gold, land, or nothing, so there was no fair exchange rate among them. State courts required state creditors to accept payments at face value with a fraction of real purchase power. The same legislation that these states used to wipe out the Revolutionary debt to patriots was used to pay off promised veteran pensions. The measures were popular because they helped both small farmers and plantation owners pay off their debts.[6]

The Massachusetts legislature was one of the five against paper money. It imposed a tightly limited currency and high taxes. Without paper money veterans without cash lost their farms at sheriff’s auction for back taxes. This triggered Shays Rebellion to stop tax collectors and close the courts until the proceedings were dropped. Troops quickly suppressed the rebellion, but nationalists like George Washington warned, "There are combustibles in every state which a spark might set fire to." [7]

Steps to a convention

Mount Vernon Conference

Movement towards replacing the Articles of Confederation began the year after its formal adoption in June 1784. George Washington, the future president of the Convention, hosted Virginia and Maryland commissioners to negotiate joint commercial regulation of the Potomac River.[lower-alpha 1] The compact drafted by the Mount Vernon Commission is still in force, but more importantly, they suggested a convention of states to “effectually” provide for a uniform commercial system throughout the United States.[lower-alpha 2]

This meant overcoming tariffs that the states had erected against one another during the Articles of Confederation regime. It was an idea for free trade across political boundaries like that advocated by Adam Smith in his influential 1776 Wealth of Nations. Over the next few months in state legislatures and in the Articles Congress, their recommendation was taken up and enlarged concerning individual rights, congressional governance and national security.[8] The Constitution was to establish the largest free trade area in the world.

Grand Committee

The Articles Congress received a “Grand Committee” report on August 7, 1786 proposing seven amendments to the states for power to “render the federal government adequate” to its declared purposes. As each achieved unanimous approval, it was to be adopted into the Articles of Confederation. But it did not leave Congress.

Congress was to have “sole and exclusive” power to regulate trade. States could not favor foreigners over citizens. Tax bills would require 70% vote, public debt 85%, not 100%. Congress could charge states a late payment penalty fee. A state withholding troops would be charged for them, plus a penalty. If a state did not pay, Congress could collect directly from its cities and counties. A state payment on another’s requisition would earn annual 6%. There would have been a national court of seven. No-shows at Congress would have been banned from any U.S. or state office.[9] A week later, three states were asked again to explain why they did not pay their national taxes. Eight were “earnestly recommended” to comply with a financial Act of Congress. The “Grand Committee” proposals for seven amendments to the Articles of Confederation were sent back to committee without a vote.[10]

Annapolis Convention

Nine of the thirteen United States appointed commissioners to meet at Annapolis in September 1786. They were to formulate recommendations for improvements in the international trade and interstate commerce that was faltering under the regime of the Articles of Confederation. In the event, only five States were represented, Virginia, Pennsylvania, Delaware, New Jersey, and New York. Although centrally located, even appointed delegates from New England and Southern states did not show. Because few states participated, the Annapolis Convention did not deem “it advisable to proceed on the business of their mission.” Leaders including Virginians Edmund Randolph and James Madison wrote a unanimous report suggesting that a convention of delegates from all thirteen states meet at Philadelphia in May 1787. More than trade and commerce, their purpose would be to examine the defects of the Articles of Confederation government and to formulate "a plan for supplying such defects as may be discovered." [11]

Virginia and five other states immediately approved and appointed their delegations. New York and others hesitated thinking that only the Continental Congress could propose amendments to the Articles of Confederation. George Washington was quite unwilling to attend an irregular convention called in the same way as the failed Annapolis Convention. Congress then called the convention at Philadelphia. The “Federal Constitution” was to be changed to meet the requirements of good government and “the preservation of the Union”. Congress would then approve what measures it allowed, then the state legislatures would unanimously confirm whatever changes of those were to take effect.

Constitutional Convention

Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787.[12] 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.[13]

Sessions

Independence Hall, south wing. Philadelphia
Washington as Convention President

The Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.[12] It 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.’"[14]

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.[15] On May 3rd, eleven days early, James Madison arrived to Philadelphia and met with James Wilson 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.[lower-alpha 3]

Convening

George Washington arrived on time, Sunday, the day before scheduled opening. [lower-alpha 4] 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 Jackson, in two years to be the president of the Society of the Cincinnati, had been Morris' agent in England for a time. He won election as a non-delegate to be the Convention Secretary. Morris entertained among the delegates lavishly.

The nationalists organize

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.[lower-alpha 5] George Washington was elected the Convention president, and Chancellor (judge) George Wythe (Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday.[lower-alpha 6]

Nathaniel Gorham (Ma) was elected Chair of the "Committee of the Whole"”. These were the same delegates in the same room, but they could use informal rules for the interconnected provisions in the draft articles to be made, remade and reconnected as the order of business proceeded. The Convention officials and adopted procedures were in place before the arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (MD).[lower-alpha 7] By the end of May, the stage was set.

The Constitutional Convention voted to keep the debates secret so that the delegates could speak freely, negotiate, bargain, compromise and change. Yet the proposed Constitution as reported from the Convention was an "innovation", the most dismissive epithet a politician could use to condemn any new proposal. It promised a fundamental change from the old confederation into a new, consolidated yet federal government. The accepted secrecy of usual affairs conducted in regular order did not apply. It became a major issue in the very public debates leading up to the crowd-filled ratification conventions.[lower-alpha 8]

Despite the public outcry against secrecy among its critics, the delegates continued in positions of public trust. State legislatures chose ten Convention delegates of their 33 total for the Articles Congress that September.[22]

Outside the Convention in Philadelphia, there was a national convening of the Society of the Cincinnati. Washington was said to be embarrassed. The 1776 "old republican" delegates like Elbridge Gerry (MA) found anything military or hereditary anathema. The Presbyterian Synod of Philadelphia and New York convention was meeting to redefine its Confession, dropping the faith requirement for civil authority to prohibit false worship.[23] Protestant Episcopalian Washington attended a Roman Catholic Mass and dinner.[24] Revolution veteran Jonas Phillips, of the Mikveh Israel Synagogue, petitioned the Convention to avoid a national oath including belief in both Old and New Testaments. Merchants of Providence, Rhode Island, petitioned for consideration, even though their Assembly had not sent a delegation.[25]

Order Name State represented
1 Washington, GeorgeGeorge Washington Virginia
2 Read, GeorgeGeorge Read [a] Delaware
3 Bedford, Jr., GunningGunning Bedford, Jr. Delaware
4 Dickinson, John AdamsJohn Adams Dickinson [b] Delaware
5 Bassett, RichardRichard Bassett Delaware
6 Broom, JacobJacob Broom Delaware
7 McHenry, JamesJames McHenry Maryland
8 Jenifer, Daniel of St. ThomasDaniel of St. Thomas Jenifer Maryland
9 Carroll, DanielDaniel Carroll [b] Maryland
10 Blair, JohnJohn Blair Virginia
11 Madison, Jr., JamesJames Madison, Jr. Virginia
12 Blount, WilliamWilliam Blount North Carolina
13 Spaight, Richard DobbsRichard Dobbs Spaight North Carolina
14 Williamson, HughHugh Williamson North Carolina
15 Rutledge, JohnJohn Rutledge South Carolina
16 Pinckney, Charles CotesworthCharles Cotesworth Pinckney South Carolina
17 Pinckney, CharlesCharles Pinckney South Carolina
18 Butler, PiercePierce Butler South Carolina
19 Few, WilliamWilliam Few Georgia
20 Baldwin, AbrahamAbraham Baldwin Georgia
21 Langdon, JohnJohn Langdon New Hampshire
22 Gilman, NicholasNicholas Gilman New Hampshire
23 Gorham, NathanielNathaniel Gorham Massachusetts
24 King, RufusRufus King Massachusetts
25 Johnson, William SamuelWilliam Samuel Johnson Connecticut
26 Sherman, RogerRoger Sherman [a][b][c] Connecticut
27 Hamilton, AlexanderAlexander Hamilton New York
28 Livingston, WilliamWilliam Livingston New Jersey
29 Brearley, DavidDavid Brearley New Jersey
30 Paterson, WilliamWilliam Paterson New Jersey
31 Dayton, JonathanJonathan Dayton New Jersey
32 Franklin, BenjaminBenjamin Franklin [a] Pennsylvania
33 Mifflin, ThomasThomas Mifflin Pennsylvania
34 Morris, RobertRobert Morris [a][b] Pennsylvania
35 Clymer, GeorgeGeorge Clymer [a] Pennsylvania
36 FitzSimons, ThomasThomas FitzSimons Pennsylvania
37 Ingersoll, JaredJared Ingersoll Pennsylvania
38 Wilson, JamesJames Wilson [a] Pennsylvania
39 Morris, GouverneurGouverneur Morris [b] Pennsylvania
40n Gerry, ElbridgeElbridge Gerry refused Massachusetts
41n Mason, GeorgeGeorge Mason refused Virginia
42n Randolph, EdmundEdmund Randolph refused Virginia
43n Davie, WilliamWilliam Davie absent North Carolina
44n Ellsworth, OliverOliver Ellsworth absent Massachusetts
45n Houston, WilliamWilliam Houston absent New Jersey
46n Houstoun, WilliamWilliam Houstoun absent Georgia
47n Lansing, JohnJohn Lansing absent New York
48n Martin, AlexanderAlexander Martin absent North Carolina
49n Martin, LutherLuther Martin absent Maryland
50n McClurg, JamesJames McClurg absent Virginia
51n Mercer, JohnJohn Mercer absent Maryland
52n Pierce, WilliamWilliam Pierce absent Georgia
53n Strong, CalebCaleb Strong absent Massachusetts
54n Wythe, GeorgeGeorge Wythe absent Virginia
55n Yates, RobertRobert Yates absent New York

Manasseh Cutler came directly from the U.S. Capital in New York and found himself a frequent dinner guest among the delegates. He carried grants of five million acres to parcel out among The Ohio Company and "speculators", some of whom would be found among those attending the Convention.[lower-alpha 9] A Philadelphia guest of Robert Morris, Noah Webster would write a pamphlet as "A Citizen of America" 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 Papers.[27]

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."[28]

Nationalist floor leaders from biggest states

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 time, so members would absent themselves to New York City on Congressional business for days and weeks at a time.[29]

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.[30] They used the same State House, later named Independence Hall, as the Declaration signers. The building setback from the street was still dignified, but the "shaky" steeple was gone.[31] 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."[32]

Delegates reporting to the Convention presented their credentials to the Secretary, Major William Jackson 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".[28]

Consolidated national v. pure "federal"

On the other hand, Delaware categorically forbade any alteration of the Articles one-state, equal vote, one-vote-only provision in the Articles Congress.[33] 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.[34]

May 29, Edmund Randolph (VA) proposed the Virginia Plan that would serve as the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. The intent was to meet the purposes set out in the Articles of Confederation, “common defense, security of liberty and general welfare”. The Virginia Plan was national, authority flowed from the people. If the people will ratify them, changes for better republican government and national union should be proposed.

Much of the Virginia Plan was adopted. [lower-alpha 10] All the powers in the Articles transfer to the new government. Congress has two houses, the ‘house’ apportioned by population. It can enact laws effecting more than one state and Congress can override a veto. The President can enforce the law. The Supreme Court and inferior courts rule on international, U.S. and state law. The Constitution is the supreme law and all state officers swear to uphold the Constitution. Every state is a republic, and new states can be admitted.[36] The Articles Congress continued until the new system started. Amendments are possible without Congress. The Convention recommendations went to Congress, from them to the states. State legislatures set the election rules for ratification conventions, and the people “expressly” chose representatives to consider and decide about the Constitution.[35]

June 15, William Patterson (NJ) proposed the Convention minority’s New Jersey Plan. It was weighted toward the interests of the smaller, less populous states. The intent was to preserve the states from a plan to “destroy or annihilate” them. The New Jersey Plan was purely federal, authority flowed from the states. Gradual change should come from the states. If the Articles could not be amended, then advocates argued that should be the report from the Convention to the states.[37]

Although the New Jersey Plan only survived three days as an alternate proposal, substantial elements of it were adopted. [lower-alpha 11] The articles were “revised, corrected and enlarged" for good government and preservation of the Union. The Senate is elected by the states, at first by the state legislatures. Congress passes acts for revenue collected directly in the states, and the rulings of state courts are reviewed by the Supreme Court. [39] State apportionment for taxes failed, but the ‘house’ is apportioned by the population count of free inhabitants and three-fifths of others originally. States can be added to the Union. Presidents appoint federal judges. Treaties entered into by Congress are the supreme law of the land. All state judiciaries are bound to enforce treaties, state laws notwithstanding. The President can raise an army to enforce treaties in any state. States treat a violation of law in another state as though it happened there.[39]

Current knowledge of drafting the Constitution comes primarily from the Journal left by James Madison, found chronologically incorporated in Max Farrand’s “The Records of the Federal Convention of 1787”, which included the Convention Journal and sources from other Federalists and Anti-Federalists.[40]

Scholars observe that it is unusual in world history for the minority in a revolution to have the influence that the “old patriot” Anti-Federalists had over the “nationalist” Federalists who had the support of the revolutionary army in the Society of the Cincinnati. Both factions were intent on forging a nation in which both could be full participants in the changes which were sure to come, since that was most likely to allow for their national union, guarantee liberty for their posterity, and promote their mutual long-term material prosperity.

Slavery in debate

The contentious issue of slavery was too controversial to be resolved during the Convention. But it 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.

Once the Convention looked at how to proportion the House representation, tempers among several delegates exploded over slavery. When the Convention progressed beyond the personal attacks, it adopted the existing "federal ratio" of the Articles Congress for taxing states proportionate to their wealth, three-fifths each state slave count. [41]

On August 6, the Committee of Detail reported its revisions to the Randolph Plan. Again the question of slavery came up, and again it was met with attacks of outrage. Over the next two weeks, delegates wove a web of mutual compromises relating to commerce and trade, east and west, slave-holding and free. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only then.[lower-alpha 12] Later generations could try out their own answers. The delegates were trying to make a government that might last that long.[42]

Migration of the free or "importation" of indentures and slaves could continue by states, defining slaves as persons, not property. Long-term power would change by population as counted every ten years. Apportionment in the House would not be by wealth, it would be by people, the free citizens and three-fifths the number of other persons meaning propertyless slaves and taxed Indian farming families. [lower-alpha 13]

In 1806, President Thomas Jefferson sent a message to the 9th Congress on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade "[violating] human rights”.[43] The 1807 "Act Prohibiting Importation of Slaves" took effect the first instant the Constitution allowed, January 1, 1808. The United States joined the British Parliament that year in the first "international humanitarian campaign".[44]

In the 1840-1860 era abolitionists denounced the Fugitive Slave Clause and other protections of slavery. William Lloyd Garrison famously declared the Constitution "a covenant with death and an agreement with Hell."[45]

In ratification conventions, the anti-slavery delegates sometimes began as anti-ratification votes. Still, the Constitution "as written" was an improvement over the Articles from an abolitionist point of view. The Constitution provided for abolition of the slave trade but the Articles did not. The outcome could be determined gradually over time. [46] Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia, Federalist George Nicholas dismissed fears on both sides. Objections to the Constitution were inconsistent, "At the same moment it is opposed for being promotive and destructive of slavery!" [47] But the contradiction was never resolved peaceably, and the failure to do so contributed to the Civil War.[48]

"Great Compromise"

Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention. [lower-alpha 14] But on June 11, he proposed the 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. [50] 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. [lower-alpha 15] [52] The motion for equal state representation in a ‘senate’ failed: 6 against, 5 for.[53]

"Men of original principles"

After these defeats, the delegagtes who called themselves the "old patriots" of 1776 and the "men of original principles" organized a caucus in the Convention. William Paterson (NJ) spoke for them introducing his “New Jersey Plan”. [54][lower-alpha 16] Roger Sherman (CT), a signer of the Declaration of Independence, was with them. Supporters explained that it "sustained the sovereignty of the states", while the Edmund Randolph (VA) “Virginia Plan” erased it. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. The "nationalists" answered, The Convention could not conclude anything, but it could recommend anything. [56]

“Patriots” said if their legislature knew anything about proposals for consolidated government, it would not have sent anyone. “Nationalists” countered, that it would be treason to withhold any proposal for good government when the salvation of the American republic was at stake. [56] Three sessions after its introduction, the New Jersey Plan failed : 7 against, 3 for, 1 divided.[57] For nearly a month there was no progress; small states were seriously thinking of walking out of the Convention. [lower-alpha 17]

Then June 25, the "original principles" men finally won a vote. The ‘senate’ would be chosen by the state legislatures, not the people, passed: 9 for, 2 against.[59] The basis of representation for both the ‘house’ and the ‘senate’ re-surfaced. Sherman 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 states” got their population ‘house’ win, then his equal state ‘senate’ motion was dropped without a vote. The majority adjourned "before a determination was taken in the House." [60] Luther Martin (MD) insisted that he would rather divide the Union into regional governments than submit to a consolidated government under the Randolph Plan. [61]

Sherman’s proposal came up again for the third time from Oliver Ellsworth (CT). In the "senate", the states should have equal representation. Advocates said that if could not be agreed to, the union would fall apart somehow. [62] Big states would not be trusted, the small states could confederate with a foreign power showing "more good faith". If delegates could not unite behind this here, one day the states could be united by "some foreign sword”. [63] On the question of equal state representation, the Convention adjourned in the same way again, "before a determination was taken in the House.".[64]

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 out of the delegation of each state onto a Committee to make a proposal; it reported July 5.[65] Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest over the big state majorities repeatedly overrunning the small state delegations in vote after vote.[66] No direct vote on the basis of ‘senate’ representation was pushed on the floor for another week.

But the Convention floor leaders kept moving forward where they could. First the 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.[67]

On July 16, Sherman’s "Great Compromise" prevailed on its fifth try. Every state was to have equal numbers in the United States Senate.[68] Washington ruled it passed on the vote 5 yes, 4 no, 1 divided. It was not that five was a majority of twelve, but to keep the business moving forward, he used precedent established in the Convention earlier.[69] 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.[58] Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan.[68]

Two new branches

Ruler as "chief magistrate"

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 in Philadelphia 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.

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[lower-alpha 18] (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, so Washington sat in the Virginia delegation where everyone could see how he voted. The vote for a one-man ‘presidency’ carried 7-for, 3-against, New York, Delaware and Maryland in the negative. Virginia, along with George Washington, had voted yes. As of that vote for a single ‘presidency’, George Mason (VA) gravely announced to the floor, that as of that moment, the Confederation's federal government was "in some measure dissolved by the meeting of this Convention."[70]

First national court(s)

The Convention was following the Randolph Plan for an agenda, taking each resolve in turn to move proceedings 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, and it was Randolph's Ninth Resolve next, about the national court system. On the table was the nationalist proposal for the inferior (lower) courts in the national judiciary.

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 Blackstone, 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.[71]

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."[71]

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.[72] 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 state government in their variety continued exercising powers in their own sphere.[73]

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.[lower-alpha 19] The Constitution added ten more. Five were minor relative to power sharing, including business and manufacturing protections.[lower-alpha 20] One important new power authorized Congress to protect states from the "domestic violence" of riot and civil disorder, but it was conditioned by a state request.[75]

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 Amendment would ensure that Congressional power could not be used to disarm state militias.[76][77]


Taxation 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 economy. It could institute protective tariffs, for instance. Congress overshadowed state power regulating interstate commerce; the United States would be the "largest area of free trade in the world."[78] 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.[76]

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".[79] There were some powers that remained beyond the reach of both national powers and state powers,[lower-alpha 21] so the logical seat of American "sovereignty" belonged directly with the people-voters of each state.[80]

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.[lower-alpha 22] Six protected liberty such as prohibiting ex post facto laws and no religious tests for national offices in any state, even if they had them for state offices.[lower-alpha 23] Five were principles of a republic, as in legislative appropriation.[lower-alpha 24] 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."[81]

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.[lower-alpha 25]

In light of the repeated abuses by ex post facto laws 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."[82][lower-alpha 26] 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.[84] 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.[80]

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" them. Philadelphia in the colonies was second in population only to London.[85]

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."[86]

New states or provinces

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."[87] 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.[lower-alpha 27] 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.[89]

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."[90] The Convention determined that the power of the people, should be felt in the House of Representatives. For the U.S. Congress, persons alone were counted. Property was not counted.

Senate changes. The Convention found it more difficult to give expression to the will of the people in new states. What state might be "lawfully arising" outside the boundaries of the existing thirteen states?[91] 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, Tennessee and Maine. But the Articles Congress had by its Northwest Ordnance presented the Convention with a new issue. Settlers in the Northwest Territory 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.[92] Generally in American history, European citizens of empire were given U.S. citizenship on territorial acquisition. Should they become states?

Some delegates were reluctant to expand into any so "remote wilderness". It would retard the commercial development of the east. They would be easily influenced, "foreign gold" would corrupt them. Western peoples were the least desirable Americans, only good for perpetual provinces. [93] There were so many foreigners moving out west, there was no telling how things would turn out. These were poor people, they could not pay their fair share of taxes. It would be "suicide" for the original states. New states could become a majority in the Senate, they would abuse their power, "enslaving" the original thirteen. If they also loved liberty, and could not tolerate eastern state dominance, they would be justified in civil war. Western trade interests could drag the country into an inevitable war with Spain for the Mississippi River.[94] As time wore on, any war for the Mississippi River was obviated by the 1803 Louisiana Purchase and the 1812 American victory at New Orleans.

Even if there were to be western states, a House representation of 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. In Transylvania, Westsylvania, Franklin, and Vandalia, "legislatures" met with emissaries from British and Spanish Empires in violation of the Articles of Confederation, just as the sovereign states had done. [lower-alpha 28] In the Constitution as written, no majorities in Congress could break up the larger states without their consent. [92]

“New state” advocates had no fear of western states achieving a majority one day. For example, the British sought to curb American growth. That brought hate, then separation. Follow the same rule, get the same results. Congress has never been able to discover a better rule than majority rule. If they grow, let them rule. As they grow, 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. 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. [96]

It was at this time in the Convention that Reverend Manasseh Cutler arrived to lobby for 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. Good to his word, in December 1787, Cutler led a small band of pioneers into the Ohio Valley. [97]

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. 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. [lower-alpha 29] Jefferson dropped the proposal of Constitutional amendment to permit the purchase, and with it, his notion of a confederation of sovereign states. [98]

Adoption and beginning



On September 17, 1787, the Constitution with its 7 Articles written on 4 pages [99] was completed, followed by a speech given by Benjamin Franklin. 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 Confederation.[100]

Massachusetts' Rufus King 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.[101] 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.[lower-alpha 30]

Delaware, on December 7, 1787, became the first State to ratify the new Constitution, with its vote being unanimous. Pennsylvania ratified on December 12, 1787, by a vote of 46 to 23 (66.67%). New Jersey ratified on December 19, 1787, and Georgia on January 2, 1788, both with unanimous votes. The requirement of ratification by nine states, set by Article Seven of the Constitution, was met when New Hampshire voted to ratify, on June 21, 1788.

In New York, fully two thirds of the convention delegates were at first opposed to the Constitution. Hamilton led the Federalist campaign, which included the fast-paced appearance of the Federalist Papers in New York newspapers. An attempt to attach conditions to ratification almost succeeded, but on July 26, 1788, New York ratified, with a recommendation that a bill of rights be appended. The vote was close – yeas 30 (52.6%), nays 27 – due largely to Hamilton's forensic abilities and his reaching a few key compromises with moderate anti-Federalists led by Melancton Smith.[lower-alpha 31]

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.[108] A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s Luther Martin argued that the federal convention had exceeded its authority; he still called for amending the Articles.[109] 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".[110]

However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s John Lansing, Jr., 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.[108]

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.[111] 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,[112] and on March 4, 1789, the government duly began operations.

George Washington had earlier been reluctant to go the Convention for fear the states "with their darling sovereignties" could not be overcome.[113] But he was elected the Constitution's President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist Patrick Henry.[114] 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.[115]

Antis' fears of personal oppression by Congress were allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments became known as the Bill of Rights.[116]

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.[117] 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 Jefferson as Secretary of State.[118][119] What Constitutional historian Pauline Maier calls a national "dialogue between power and liberty" had begun anew.[120]

The process of organizing the government began soon after ratification by Virginia and New York. On September 13, 1788, Congress fixed the city of New York as the seat of the new government. (The capital was moved to Philadelphia in 1790 and to Washington D.C., in 1800.) It set Wednesday, January 7, 1789 as the day for choosing presidential electors; Wednesday, February 4 for the meeting of the electors to select a president, and Wednesday, March 4 for the opening session of the new Congress and the beginning of the first presidential term. Thus, March 4, 1789 became inauguration day.

Under the Constitution, each state legislature had the power to decide how presidential electors, as well as representatives and senators, would be chosen. Some states opted for direct elections by the people, others for election by the legislature, and a few for a combination of the two. Rivalries were intense; delays in setting up the first elections under the new Constitution were inevitable. New Jersey, for example, chose direct elections but neglected to set a time for closing the polls, which stayed open for three weeks.

By March 4, 1789, when the first Congress opened, only 13 of the 59 representatives and 8 of the 22 senators had arrived in New York City. (Seats allotted to North Carolina and Rhode Island were not filled until those states ratified the Constitution.) A quorum was finally attained in the House on April 1 and in the Senate on April 6. On April 1, the House elected a Speaker, and on April 6, the Senate elected its President pro tempore. The two houses then met jointly to count the electoral vote.

George Washington was unanimously elected the first president, and John Adams of Massachusetts, the vice president. Adams arrived in New York on April 21, and was sworn into office on the same date. Washington arrived in New York on April 23, and was sworn into office on April 30, 1789. The business of setting up the new government was completed.

Bill of Rights

The Constitution has been amended 27 times since 1789. In 1789, James Madison proposed twelve amendments to the First Congress. Congress approved these amendments as a block in September 1789 and eleven states had ratified ten of them by the end of 1791. These ten amendments are known collectively as the United States Bill of Rights.

Much of the initial resistance to the Constitution came, not from those opposed to strengthening the federal union, but from statesmen who felt that the rights of individuals must be specifically spelled out. One of these was George Mason, author of the Virginia Declaration of Rights, which was a forerunner of the Bill of Rights. As a delegate to the Constitutional Convention, Mason refused to sign the document because he felt it did not protect individual rights sufficiently. Indeed, Mason's opposition nearly blocked ratification by Virginia. Because of similar feelings in Massachusetts, that state recommended with its ratification the addition of specific guarantees of individual rights. By the time the First Congress convened, sentiment for adoption of such amendments was nearly unanimous, and the Congress lost little time in drafting them. Many anti-Federalists had sharply criticized the constitution drafted at Philadelphia for its failure to provide guarantees of individual rights such as freedom of religion and trial by jury.

Subsequent amendments

Amendments to the Constitution subsequent to the Bill of Rights cover a wide range of subjects. One of the most far-reaching is the fourteenth, ratified in 1868, which establishes a clear and simple definition of citizenship and guarantees equal treatment under the law. Other amendments have limited the judicial power of the national government; changed the method of electing the president; forbidden slavery; protected the right to vote; extended the congressional power to levy taxes to individual incomes; and instituted the direct election of U.S. senators.

The most recent amendments include the twenty-second, limiting the president to two terms in office; the twenty-third, granting citizens of the District of Columbia the right to vote for the President and the Vice President; the twenty-fourth, giving citizens the right to vote regardless of failure to pay a poll tax; the twenty-fifth, providing for filling the office of vice president when it becomes vacant in midterm; the twenty-sixth, lowering the voting age to 18; and the twenty-seventh, concerning the compensation of U.S. senators and representatives.

Criticism of the Constitution

Expand democracy

In the early twentieth century Lochner era, the Supreme Court ruled unconstitutional various state laws that limited labor contracts. The Constitution was criticized as putting the government at the beck and call of big business.[121]

More recent criticism has often been academic and limited to particular features. University of Texas law professor Sanford Levinson wonders whether it makes sense to give "Wyoming the same number of votes as California, which has roughly seventy times the population".[122] Levinson thinks this imbalance causes a "steady redistribution of resources from large states to small states."[122] Levinson is critical of the Electoral College as it allows the possibility of electing presidents who do not win the majority, or even plurality, of votes.[122] Four times in American history, presidents have been elected despite failing to win a plurality of the popular vote: 1824 John Quincy Adams, 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison) and 2000 (George W. Bush).[123][124][125][126] The current Constitution does not give the people a quick way to remove incompetent or ill presidents, in his view.[126] Others have criticized gerrymandering.[127]

Yale professor Robert A. Dahl sees a problem with an American tendency towards worship of the Constitution itself. (See American civil religion) He sees aspects of American governance which are "unusual and potentially undemocratic: the federal system, the bicameral legislature, judicial review, presidentialism, and the electoral college system."[128] Levinson and Labunski and others have called for a Second Constitutional Convention,[129] although professors like Dahl believe there is no real hope this would ever happen.[128]

University of Virginia professor Larry Sabato advocates an amendment to organize presidential primaries.[130] Sabato details more objections in his book A More Perfect Constitution. [130][131] He opposes life tenure for Supreme Court judges."[131] He also writes that "If the 26 least populated states voted as a bloc, they would control the U.S. Senate with a total of just under 17% of the country’s population."[131] Sabato further contends that the Constitution is in need of an overhaul, and argues that only a national constitutional convention can bring the document up to date and settle many of the issues that have arisen over the past two centuries.[132]

States Rights

In United States history, four periods of widespread Constitutional criticism have been characterized by the idea that specific political powers belong to state governments and not to the federal government—a doctrine commonly known as states rights. At each stage, states' rights advocates failed to develop a preponderance in public opinion or to sustain the democratic political will required to alter the generally held constitutional understanding and political practice in the United States. At its adoption among the people in the state ratification conventions, the “men of original principles” opposed the new national government with federal characteristics as violating the Whig philosophy generally accepted among the original thirteen colonies in 1776. According to this view, Congress as a legislature should be only equal to any state legislature, and only the people in each state might be sovereign. Although it was a term used by their nationalist opponents, they are now referred to as the Anti-Federalists in American historiography. The proponents of "state sovereignty" and "states rights" were outvoted in eleven of thirteen state ratification conventions, then thirteen of thirteen, to "ordain and establish" the Constitution.

During Andrew Jackson’s administration, South Carolina objected to U.S. government’s “tariff of abominations” collected as Federal duties in Charleston Harbor. The Nullification Crisis ensued. Justification for the nullifiers was found in the U.S. Senate speeches and writings of John C. Calhoun. He defended slavery against the Constitutional provisions allowing its statutory regulation or its eventual abolition by Constitutional amendment, most notably in his Disquisition on Government. The crisis was averted when once General Jackson declared he would march a U.S. army into South Carolina and hang the first nullifier he saw from the first tree. Abraham Lincoln kept a portrait of Andrew Jackson above his desk at the War Department during efforts to defend the Constitution as understood by a national majority of people and states at that time.

In the mid-19th Century during the administrations of Abraham Lincoln, Andrew Johnson and Ulysses S. Grant, the United States suffered a tragic passage through the Civil War and Reconstruction. An important survey of the philosophical and legal underpinnings of “States Rights” as held by secessionists and Lost Cause advocates afterwards is found in the speeches of Confederate President Jefferson Davis and his Rise and Fall of the Confederate Government. Davis defended secession by appealing to the “original principles" of the Founders' 1776 Revolutionary generation, and by expanding on William Blackstone's doctrine of legislative supremacy. By the elections of 1872, all states which had been admitted to the United States in accordance with the Constitution were fully represented in the U.S. Congress.


Following the Supreme Court 1954 holding in Brown v. Board of Education, President Dwight D. Eisenhower used National Guard and U.S. paratroopers to enforce the dictates of the Federal Courts in their interpretation of the Constitution. The “States Rights” doctrine was again appealed to during the mid-20th Century resistance to racial integration in the schools, notably in Arkansas’ Little Rock Nine, Alabama’s Stand in the Schoolhouse Door, and Virginia’s Massive Resistance. Public schools in every state are now racially integrated by law under the authority of the U.S. Constitution.

The tradition is seen in many shorter episodes of limited minority protest against the United States. During the War of 1812, Federalists conducted a Hartford Convention proposing New England secession during wartime to reopen trade with the declared enemy of the United States. It led to accusations of treason and the demise of the Federalist Party as a force in American politics. In 1921, the Maryland Attorney General sued to block woman suffrage. He argued in Leser v. Garnett that state legislatures were Constitutionally the sole determiners of who should vote in what Federal or state elections, and that the 19th Amendment was improper. The Supreme Court's judicial review of the state court findings held that the 19th Amendment was Constitutional, and that it applied to the women’s right to vote in every state. Women now vote in every state under the authority of the U.S. Constitution.

One exceptional example of "states rights" persuading overwhelming majorities in a democratic and sustained way, and so transforming the nation came in the John Adams administration. Fear had spread that radical democratic sentiment might turn subversive as it had in the French Reign of Terror. But the Federalist-sponsored Alien and Sedition Acts meant to preempt the danger led to suppression of opposition press. The political reaction in the Virginia and Kentucky Resolutions sparked public opposition against the Federalist policy and led to twenty-four years of Constitutionally elected Democratic-Republican Party rule through six administrations of Thomas Jefferson, James Madison and James Monroe.

History of the physical document

At first, little interest was shown in the parchment object itself. Madison had custody of it as Secretary of State (1801-9) but having left Washington, he had lost track of it in the years leading to his death. A publisher had access to it in 1846 for a book on the Constitution. In 1883 historian J. Franklin Jameson found the parchment folded in a small tin box on the floor of a closet at the State, War and Navy Building. In 1894 the State Department sealed the Declaration and Constitution between two glass plates and kept them in a safe.[133]

The two parchment documents were turned over to the Library of Congress by executive order, and in 1924 President Coolidge dedicated the bronze-and-marble shrine for public display of the Constitution at the main building. The parchments were laid over moisture absorbing cellulose paper, vacuum-sealed between double panes of insulated plate glass, and protected from light by a gelatin film. Although building construction of the Archives Building was completed in 1935, in December 1941 they were moved from the Library of Congress until September 1944, stored at the U.S. Bullion Depository, Fort Knox, Kentucky. In 1951 following a study by the National Bureau of Standards to protect from atmosphere, insects, mold and light, the parchments were re-encased with special light filters, inert helium gas and proper humidity. They were transferred to the National Archives in 1952.[134]

Since 1952, the "Charters of Freedom" have been displayed in the Rotunda of the National Archives Building. Visual inspections have been enhanced by electronic imaging. Changes in the cases led to removal from their cases July 2001, preservation treatment by conservators, and installment in new encasements for public display September, 2003.[135][136][137]

See also

Notes

  1. ^ The colonists, for example, claimed the right "to life, liberty, and property", "the rights, liberties, and immunities of free and natural-born subjects within the realm of England"; the right to participate in legislative councils; "the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of [the common law of England]"; "the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws"; "a right peaceably to assemble, consider of their grievances, and petition the king." They further declared that the keeping of a standing army in the colonies in time of peace without the consent of the colony in which the army was kept was "against law"; that it was "indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other"; that certain acts of Parliament in contravention of the foregoing principles were "infringement and violations of the rights of the colonists." Text in C. Tansill (ed.), Documents Illustrative of the Formation of the Union of the American States, H. Doc. No. 358, 69th Congress, 1st sess. (1927), 1. See also H. Commager (ed.), Documents of American History (New York; 8th ed. 1964), 82.
  2. ^ Text in Tansill, op. cit., 10.
  3. ^ Id., 19.
  4. ^ Id., 21.
  5. ^ George Mason, Edmund Randolph, James Madison, and Alexander Henderson were appointed commissioners for Virginia; Thomas Johnson, Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for Maryland.
  6. ^ Text of the resolution and details of the compact may be found in Wheaton v. Wise, 153 U.S. 155 (1894).
  7. ^ Tansill, op. cit., 38.
  8. ^ Id., 39.

Footnotes

References

Primary sources

  • ISBN 0-940450-42-9
  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (ISBN 0-940450-64-X
  • Max Farrand, ed. Records of the Federal Convention (1911)
  • Madison, James. Jonathan Elliot's Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 3: Debates in the Federal Convention of 1787 as Reported by James Madison. 1989. 811 pp.
  • Pole, J. R., ed. The Federalist Indianapolis: Hackett, 2005. 512 pp.

Scholarly studies

  • Adair, Douglass [author]; Colbourn, Trevor [editor]. Fame and the Founding Fathers: Writings of Douglass Adair. W. W. Norton for Institute of Early American History and Culture, 1974; reprint ed., Liberty Fund, 1998. Collection of essays by one of the most influential scholars on the intellectual origins of the Constitution.
  • Adams, Willi Paul. The First American Constitutions. University of North Carolina Press, 1980; revised and expanded edition, Madison House, 2000. Focusing on the state constitutions framed in the era of Revolutionary constitutionalism and their relationship to the Constitution of 1787.
  • Berkin, Carol. A Brilliant Solution: Inventing the American Constitution. 2002. 310 pp. broad and accessible overview
  • Bernstein, Richard B., with Rice, Kym S. Are We to Be a Nation? The Making of the Constitution. Harvard University Press, 1987, 324 pp. Broad-focus overview, written for scholars and general readers alike, of the "age of experiments in government" spanning the period from the early 1750s through the early 1790s, and giving careful attention to the intellectual context and origins of the Constitution and the Bill of Rights.
  • Bernstein, Richard B. Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? Times Books, 1993; paperback, University Press of Kansas, 1995. 398 pp. History of the Constitution's amending process, focusing on the links between the Constitution and American national identity and values.
  • Bowen, Catherine Miracle at Philadelphia: the story of the Constitutional Convention, May to September, 1787 New York: Little, Brown. (2010) [First published 1966] ISBN 978-0-316-10261-2
  • Collier, Christopher. All Politics Is Local: Family, Friends, and Provincial Interests in the Creation of the Constitution. U. Press of New England, 2003. 224 pp.
  • Collier, Christopher and Collier, James Lincoln. Decision in Philadelphia: The Constitutional Convention of 1787. 1986. 331 pp.
  • Currie, David P. The Constitution in Congress: Democrats and Whigs, 1829-1861. U. of Chicago Press, 2005. 346 pp.
  • Jensen, Merrill; The New Nation a History of the United States During the Confederation 1781-1789 (1950)
  • Johnson, Allen. Union and Democracy." Houghton Mifflin Company, 1915.
  • Kernell, Samuel, ed. James Madison: The Theory and Practice of Republican Government. 2003. 381 pp.
  • Kyvig, David. Explicit & Authentic Acts: Amending the U.S. Constitution, 1776-1995. University Press of Kansas, 1996. Bancroft-Prize-winning history of the Constitution's amending process.
  • Levy, Leonard W.; Karst, Kenneth; and Mahoney, Dennis, eds. Encyclopedia of the American Constitution 4 volumes (1986).
  • McDonald, Forrest. We the People: The Economic Origins of the Constitution. University of Chicago Press, 1958.
  • McDonald, Forrest. E Pluribus Unum: The Formation of the American Republic, 1776-1790. Reprint Edition, Liberty Fund.
  • McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the Constitution. University Press of Kansas, 1995.
  • McGuire, Robert A. To Form a More Perfect Union: A New Economic Interpretation of the United States Constitution. 2003. 395 pp.
  • Morris, Richard B. The Forging of the Union, 1781-1789. 1987. 416 pp. political and economic survey of 1780s and writing of Constitution
  • Nevins, Allan. The American States During and After the Revolution, 1775-1789 (1924) (ISBN 0-678-00510-9)
  • Wood, Gordon S. The Creation of the American Republic, 1776-1787. University of North Carolina Press for the Institute of Early American History and Culture, 1969. Massive, Bancroft-Prize-winning examination of the intellectual, constitutional, and political history of the new nation from the opening of the American Revolution to the ratification of the U.S. Constitution.

External links

  • Madison letter to Jefferson informing him of proceedings of the Constitutional Convention
  • The Fathers of the Constitution; a chronicle of the establishment of the Union by Max Farrand 1869-1945
  • William Pierce
  • The Federalist Papers
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