The Constitution

*In 1786 many Americans were worried about their country, with frontier state movements, Indian attacks, and piracy on the high seas all beyond Congress’s power to control.  Even more worrying was the threat of mob rule through tax revolts like Shays’s rebellion.  Worst of all was the threat to commerce created by tariffs between the states and the lack of a coherent trading policy.  In response, Virginia called for a convention in Annapolis to deal with issues of trade among the states.

*The Annapolis Convention of 1786 did not accomplish much.  Only nine states even planned to send delegates, and of those, only five actually did.  Nothing was accomplished except that Alexander Hamilton of New York convinced the Convention to send a request to Congress authorising a meeting to address the problems of the Articles of Confederation.  Congress reluctantly agreed.

*Since 1785, Congress had been meeting in New York, but this new convention would be held in Philadelphia.  On 25 May, 1787, 55 delegates from 12 states (but not Rhode Island) met officially to revise the Articles of Confederation.  However, many of those attending, including the entire Virginia delegation (led by George Washington and James Madison), hoped to completely replace it with a new system of government, realising that getting all thirteen states to agree to amend the Articles of Confederation was probably impossible.

*Many of the delegates already had experience writing constitutions, having taken part in writing their own states’ constitutions.  Many were lawyers, and most were well-read in the political theories of the day.  Several were leading figures of the American Revolution, or at least had taken part in it.  George Washington was unanimously elected chairman of the convention.  Benjamin Franklin was the oldest member of the convention.  Alexander Hamilton, who had served with George Washington, was one of the strongest advocates of a strong central government, even personally considering abolishing the states entirely.  James Madison also supported a strong national government that could bypass state authority, and played such a large role in the convention that he is sometimes called the Father of the Constitution, although that is also partly because much of the record of the convention comes from his journals, because the debates as the convention were all kept secret because their topic was so controversial. 

*Overall, the Framers themselves were prosperous and relatively conservative, in some ways seeking to save the Revolution from itself by creating a more stable and powerful central government.  One of their theoretical guides for doing so was the French philosopher, the Baron de Montesquieu (whose ideas, in turn, echoed those of Polybius).  Montesquieu believed there were three basic functions of government:  executive (to enforce laws), legislative (to create laws), and judicial (to judge obedience to the laws).  These three branches ought to be separate and balanced, and each, in its own way, would represent the interests of the people—but also at some remove from the people, because too much democratic influence would lead to mob rule.  Furthermore, by spreading the powers of government out, even if some individuals in government were corrupt and did not have true republican virtue, the other parts of the government would control them.

*Even though the Framers agreed that they needed a strong executive, they still saw the legislature, as the representatives of the people, as the most important part of the Constitution, and devoted the most energy to debating its form. 

*James Madison came prepared for this with what is usually known as the Virginia Plan.  The legislature would be bicameral, with a lower house elected by the people and an upper house selected by the lower house from a list of nominees from the state governments.  This bicameral legislature would then elect an executive and establish the judiciary.  Working together, the three branches could even veto state laws.  That was controversial, and never adopted, but the matter of fiercest debate was that under the Virginia Plan, the number of representatives in both houses of the legislature would be based on the population of the states, which gave an obvious advantage to Virginia, the most populous state of all.

*Small states objected, and put forth the New Jersey Plan.  Under this plan, the Articles of Confederation would be retained, but significantly modified.  They would retain a unicameral legislature with each state having equal representation.  It would create an executive branch and a judiciary, but the executive branch would be made up of a small group and not an individual leader.  It also made the national government more powerful than it had been, although not as powerful as the Virginia Plan would have made it.

*After a long debate, the Great Compromise was adopted.  In a bicameral legislature, a House of Representatives would represent the people with representation based on population, while a Senate would represent the states, with each state’s legislature selecting two Senators.  In some ways the Senate would be more powerful, having a bigger say in confirming or denying appointments and treaties made by the executive branch, but the power of the purse would lie with the House of Representatives, where all tax bills must originate.

*The House is elected every two years.  This is to make them responsive to the people (although in many states accustomed to annual elections, even biennial elections seemed too infrequent).  The Senate is elected every six years, but it cycles so that one third are elected every two years.  This is to let them be more independent of the passing whims of public opinion.  In these, and all elections, the states could decide who was eligible to vote, and at first it was limited to adult white men who met some kind of property or tax-paying qualification.

*Because the House of Representatives (and state contributions to taxes) were based on population, a census would be held every ten years.

*As the most important branch of the government, representing the people, Congress is described in Article I of the Constitution.  Section 8 gives Congress the power to tax, to borrow money, the regulate commerce, to coin money, to establish Post Offices, to issue patents, to declare war, to raise an army and a navy, to commission privateers, to call up the state militias, to govern a separate federal district for the capital city not within the boundaries of any particular state, and to make all laws necessary and proper for executing those powers and all other powers listed in the constitution.  Congress also have the power to expel their own members as well as
impeach members of the other two branches of the government.

*In many ways, the two most important parts of Article I, Section 8 are the Commerce Clause and the Necessary and Proper Clause. 

*By having the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes Congress would be able to address the problems besetting trade that had originally led to the calling of the Annapolis Convention the year before, but could also give Congress influence over any type of business that crossed state lines, and eventually Congress would make the most of this power. 

*The Necessary and Proper Clause gives Congress even more power, by allowing it to create all laws necessary and proper to carry out its duties, but it is Congress who determine what is necessary and proper.  This power has proven so flexible that it is sometimes known as the Elastic Clause.

*Since population mattered for representation and for tax purposes, there was a question of whether slaves counted for population. Southerners wanted them to count for representation, since they were people, and not for taxation, since they did not have any income of their own; northerners wanted the reverse, saying that slaves added economic value to a state but did not participate in its politics.  Finally, the Convention created the Three-Fifths Compromise.  Slaves would count as 3/5 of a person for taxation and representational purposes, although the word slave was never included in the Constitution.

*Some Framers wanted to abolish the importation of slaves, but South Carolina and Georgia objected, so it was agreed that 'such persons' could be imported for at least twenty years--and in 1808, as soon as possible, the importation of slaves was outlawed.  Within the United States, though, the Constitution would require runaway slaves to be returned to their masters even if they made it to a state that did not permit slavery.

*To avoid an excess of democracy, the executive would not be elected directly by the people, but by an electoral college in which each state would have votes equal to its total Congressional delegation (Representatives and Senators).  Each elector would cast two votes, at least one of which had to be for someone not from the elector’s own state, and whomever got the most would become president and whomever got the second most would be vice-president, as long as each got over half the possible votes.  If no-one had an outright majority for either or both offices, the members of the House of Representatives would vote, with each state getting a single vote.  It was assumed that this might happen fairly often; in fact it has only happened twice.

*According to Article II, the President would be commander-in-chief of the military (although without the power to declare war) and be in charge of international diplomacy, the treasury, and the duties of executing the laws passed by Congress (or vetoing them—although Congress can overturn his vetoes).

*The Judicial Branch was barely described in Article III of the Constitution, except to establish that it was separate from the other branches and that members of the Supreme Court would serve for life or during good behaviour after being appointed by the executive and confirmed by the Senate, making it the branch of the government most removed from the people.  While the judiciary was seen as important, in many ways it was treated as an afterthought, and in the manner of common law, its nature would be defined by future legal decisions.

*Article IV of the Constitution also dealt with managing relations between the several states (including, in Article IV, Section 3, how new states could be formed by submitting a state constitution to Congress which could then approve or deny statehood, and if the new state was being carved out of an existing state, it would have to approve, too--inspired, in part, by the State of Franklin).  Among other things, each state must give full faith and credit to the public acts, records, and court proceedings of other states, so that legal decisions could not be avoided or nullified by crossing state lines.

*Article V describes how the Constitution can be amended by 3/4 of the states, either through votes by the state legislatures or by popular conventions for that purpose.  While this ensured that amending the Constitution would not be done for light or transient causes, it also meant it would not be impossible, as it was under the Articles of Confederation.

*Article VI establishes that the Constitution and laws created according to it will be the supreme law of the land, and that every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.

*Article VII describes the process of ratifying the Constitution itself, through special conventions to be called in each state with delegates elected specifically for that purpose.  Once 2/3 of the states (9) had ratified it, it would become the supreme law of the land for those states, and any states that did not ratify it would be left out unless they chose to join later.  Like the 3/4 majority needed for amending the Constitution, this ensured that one recalcitrant state could not block the entire process.

*Most of the Framers were not particularly happy with the Constitution.  James Madison and Alexander Hamilton felt they had failed by not making the proposed central government strong enough or weakened the state governments enough.  Others felt they had made the central government too strong.  Some were unhappy that slavery was permitted and even protected by the Constitution.  Many worried that they might have made a mistake by not including a Bill of Rights in the Constitution.  Of 55 delegates who went to Philadelphia, only 42 stayed for the entire time, and of those, three refused to sign the final document and went back home to campaign against it.  Even many of those who signed it viewed it as a temporary measure that would be replaced in turn in a few years, or at least heavily amended.  All they were sure of was that it gave them a better framework than the Articles of Confederation.

*Although the Framers of the Constitution may have composed it, and James Madison may have been its father, according to the document itself, its authors were 'We the People,' and it was the People who would have to ratify it through specially elected conventions, but only after long and fierce debates.

*The Constitution of 1787 was not a popular document at the time.  The struggle to ratify it was the first major political debates to split the entire country since the Revolution.

*The Constitution was distrusted by many people, but several influential men supported it.  They, and their adherents, were called the Federalists, because they described the system of government the Constitution was supposed to create as a federal system.  However, this was a bit disingenuous:  they were not really seeking to create a new confederation in which the various states had as much or more power than the national government; although the states would continue to exist and be important, they would be subordinate to the national government created by the Constitution.  This was not federalism as most people meant it at the time, but because most people wanted a federal system, the name was a politically clever choice for the Federalists (and left their opponents, who were really more federalist than the Federalists, stuck with the negative name 'Anti-Federalists').

*Among the most influential Federalists were George Washington, Benjamin Franklin, James Madison, Alexander Hamilton, and John Jay.

*The Federalists argued that a strong national government was necessary for defence from foreigners and from domestic insurrections (such as Shays’s Rebellion or the State of Franklin).  It would also regulate trade and improve commerce, and could conduct diplomacy more effectively, because it would have the wealth and military force to back itself up.

*The Anti-Federalists, among whom Patrick Henry and Samuel Adams were the most famous (although Jefferson secretly sympathised with them, though he eventually came out as a Federalist), feared, first, that a representative government simply could not control so much land.  Its officials would not know enough to govern far-off places, creating something not unlike the British concept of virtual representation.  A centralised government for such a vast territory would also be too inefficient, and it would naturally dissolve into factions or parties (which they viewed as a threat to public virtue, because factions would put factional interest above the general public interests).  The Federalists said that there would be no political parties that mattered because so many people spread across such a large area would have so many interests that they could not work together in just two or three parties. 

*The Anti-Federalists also feared a large government with a standing army and the power to tax.  They worried that the new government would end up as tyrannical as the British government they had just overthrown.  They worried that a strong national government would infringe upon the power of the states, which were the true representatives of the people.  They thought a big, distant government would not care about local problems. 

*Also, there was no Bill of Rights to protect the people from the government.  Most state constitutions included a Bill of Rights and even the British had one.  The Federalists argued that a national Bill of Rights was not necessary precisely because each state had one of its own, and because as a creation of the People, the Constitution would never infringe on their rights anyway.  Still, to assuage people's fears, they promised to create a Bill of Rights as soon as the Constitution was ratified, and that made the difference for a number of voters.

*Numerous pamphlets and articles were written about the Constitution, and the majority of them favoured the Federalists, since, being wealthier on the whole, more of them owned or influenced newspapers and other publishers.  The most famous of these was a series called The Federalist or the Federalist Papers.  Published in New York by Madison, Hamilton, and Jay from October 1787 to August 1788, they made one of the best arguments for the Constitution, which helped swing the vote for the Federalists in New York and which are still studied to-day, since they are a way to see the Father of the Constitution explain his work. 

*In fact, the importance of The Federalist as an explanation of the thoughts of some of the Framers for later generations may have been more influential than their effect on the ratification debate (since New York did not ratify the Constitution until after ten states had already done so, meaning that it was already in effect in many parts of the country).  Many lawyers, judges, and constitutional scholars have used it as a reference for court decisions and legal arguments.

*The most famous of the Federalist Papers is Federalist No. 10, which claimed that a large republic would be less likely to be corrupted by factionalism than smaller states, which had already shown themselves capable of rebellions like Shays's Rebellion and the State of Franklin (both mentioned in No. 6).  Because it would be so large, there would be too many interest groups for them to coalesce into large parties that could dominate the country through the tyranny of the majority.  There would also be a larger pool of candidates for public office, and thus more competent men available for election.  It also argues that the size of the territory would not make government too distant from local matters, because the state governments would still exist and could still tend to that.  No. 14 makes much the same argument.

*The Federalists won for a number of reasons, although it was not easy.  They won because people feared disorder, such as Shays’s rebellion, because they had a specific plan (while the Anti-Federalists did not have an alternative answer to known problems with the Articles of Confederation), because they were well-organised, and because they had the support of many respected men, especially George Washington, who was the most popular man in America, and it was assumed would become the first president if the Constitution was ratified.

*In general, the wealthy, particularly merchants, tended to support the Constitution because they had the most to lose from currency devaluation, insurrection, and difficulty trading overseas.  Some frontier people, although certainly not all, also favoured it, hoping it would give the national government the power to protect them from Indians and force the Spanish to open the Mississippi to trade (and also to bring frontier areas into the new Union as their own states).  Small farmers and debtors were generally against it, as they saw it as more likely to benefit the rich to whom they owed money and the merchants who took part in international trade that was of no obvious use to them.  There were, of course, many exceptions on both sides.

*The Constitution was ratified quickly by small states who needed the protection of a strong union.  Delaware was first, on 7 December, 1787.

*Most of the larger states were slower, although Pennsylvania ratified it shortly after Delaware and Massachusetts ratified it on 7 February, 1788, despite the opposition of Samuel Adams.  In June, 1788, New Hampshire became the ninth state to ratify, making the Constitution the official frame of government for those states, but that was not really good enough, because until large and commercially important Virginia and New York had ratified the Constitution it could not really be taken seriously—without them the Union would likely not have lasted.

*North Carolina ratified a bit later, in 1789 (and immediately turned its western lands over the Congress again), and Rhode Island did not join until May, 1790.

*The Federalists soon addressed one of the chief complaints about the Constitution, namely the lack of a Bill of Rights.  Based on the work of George Mason of Virginia, but written by James Madison, it was designed to protect the rights of the people.  Twelve amendments were written in September, 1789, and ten were ratified by all the states by 15 December, 1791 (and one more in 1992 as the XXVII Amendment).  Those ratified in 1791 are known to-day as the Bill of Rights. 

*The Bill of Rights protects many things that were important to the Founders based on their experiences with the British government:  freedom of religion, freedom of speech, freedom of the press, freedom of assembly, the right to petition, freedom from having soldiers quartered in one's home, freedom from unreasonable search and seizure or the loss of property without a trial, many other rights in trials, including the right not to testify against oneself, the right to a speedy trial, freedom from double jeopardy, multiple guarantees of trial by jury, freedom from cruel and unusual punishment, and the right that the Founders thought guaranteed all others, the right to bear arms.  The Bill of Rights also says that any rights not mentioned in the Constitution still exist unless they are specifically limited elsewhere in the Constitution and that any powers not given specifically to the national government still belong to the states or to the people.

This page last updated 19 August, 2021.
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