CREATING THE CONSTITUTION
*Review problems of the Confederation Congress: inability to tax, poor control of states, Shays’ Rebellion, state independence movements. People thought the fragile confederation would collapse.
*State of Franklin, 1784-89: State movement that got farthest without succeeding. NC gave western lands to Congress to make them happy, and to get rid of them, because they were a nuisance. They also expected to get a little tax credit. Then they learnt that New England states were getting more credit for less, and took the cession back. In the meantime, Western NC had made its own state, the State of Franklin. There were disputes, coeval elections, Indian Wars, and the Tipton-Sevier feud (‘debate’ in Jonesborough, Battle of Tipton’s Farm). Eventually this falls apart, but it will be part of the reason for Article IV, Section 3. For a longer discussion of the State of Franklin, you may download “Disunited States: The Lost State of Franklin and Frontier State Movements at the Dawn of the American Republic” in Word document format. Be aware that it is 233 kilobytes in size.
*Remember Annapolis Convention, 1786. Although only a few delegates showed up, they decided to try again next year, to reconsider problems with the Articles of Confederation.
*May, 1787, Philadelphia: 55 delegates from 12 colonies (not Rhode Island). These men will ultimately create the Constitution that we more or less use to-day. Early on, there is a big debate over whether to try to amend or replace the Articles. Eventually, they realise that they will never be able to repair the Articles of Confederation, because it takes a unanimous vote to change it in any way. When Rhode Island doesn’t even bother to come, there’s not chance of pushing this through Congress. However, they try anyway.
*The mastermind of the Constitutional Convention is James Madison of Virginia, often called ‘the Father of the Constitution.’ Small, quiet and shy, he sat in meetings and took notes. However, he was also brilliant at making deals behind the scenes. He believed that people would not do the right thing just because it was right—look at the refusal of states to pay for Congress’ needs. Rather, people needed to be put in a position where they could not be too dirty—thus the ideas of separation of powers and of checks and balances that we love to-day.
*To understand what this is about, let’s talk about Polybius (200-118 BC) real quickly and the British system. Explain fear of the people and of democracy, which is why many people want the state legislatures to elect national representatives.
*There were a couple plans offered at the Convention, and there was debate between them. These were the Virginia Plan and the New Jersey Plan.
*Virginia Plan: Bicameral legislature, with representation determined either by a state’s population, or by the amount of money a state gives to the central government. Representatives are elected by the people to the lower house, and nominated for the upper house by the state legislatures (and from among these nominees, the lower house would chuse the upper house). This legislature could veto state government actions and use the army to enforced this (which was a very unpopular idea and did not pass). There would also be an executive and a judicial branch. Overall, this is good for big states.
*New Jersey Plan: Unicameral
legislature, elected by state legislatures, and apportioned equally among
the states. Congress have the power to tax, to regulate trade, foreign
and domestic. It creates executive and judicial branches as well.
It meant to keep the state government stronger than the national government,
although it would have the national government be more powerful than under
the articles of Confederation.
*With these conflicting ideas, there have to be some compromises. Happily, some were reached.
*The Great Compromise was introduced by delegates from Connecticut (Roger Sherman and Oliver Ellsworth). It created a Senate, elected by the state legislatures and having equal representatives for all the states, and a House of Representatives with representatives chosen by popular votes and based on states’ populations. This made both large and small states happy.
*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 and not for taxation; northerners wanted the reverse. Finally, the Convention creates the Three-Fifths Compromise. Slaves will count as 3/5 of a person for taxation and representational purposes. Of course, they cannot vote, although in a few states, free blacks can. In truth, though, not all white men can vote, thanks to property qualifications.
*Many people were not satisfied with this system. Slavery still existed, and the slave trade was protected by the Constitution until at least 1808. There is no bill of rights, guaranteeing freedom of speech, of religion, from search and seizure, of trial by jury, of the right to own weapons, because the people want to be able to protect themselves against the government if it turns bad. It is believed that private ownership of weapons is the basic guarantee of liberty, and that trial by a jury of peers is one of the most ancient rights of Englishmen and therefore of Americans. Finally, some people are afraid of the Elastic Clause, as it is sometimes called, which gives the Congress the power to make ‘all laws which shall be necessary and proper’ to carry out all the powers granted them. People feared this could let Congress do ANYTHING.
*However, the Constitution has ways to amend it that are easier than the Articles of Confederation—only 2/3 of the states have to agree. Therefore, people know that these things can be fixed later, or at least the Convention promises this is the case.
*The US have a federal system of government. This means that the federal government has some powers (such as making war and peace) and the state have some powers (such as managing schools) and some powers are held by both (such as creating courts and creating taxes).
*The federal government also has separation of powers, and each part of the government is supposed to be equal to the others. Also, each branch has ways to stop things the others do, in a system called the system of checks and balances. The President can veto laws and Congress can overrule vetoes, while the Supreme Court can declare laws unconstitutional. The President is commander in chief of the army, but Congress pay the army and creates it.
*Congress is elected by the people and by the state legislatures. The House is elected every two years. This is to make them responsive to the people. 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 people. However, just as in Parliament (and at the behest of the large states), only the lower house can introduce laws to raise money.
*The president is also safely removed from the people. He is chosen, not by direct vote, but by the electoral college, in which each state gets as many votes as it does in Congress. The president serves for four years, as many times as he wants. The framers of the Constitution figured George Washington would become President this time, because everyone liked him, but they thought it might be hard to get a majority in the future. Therefore, the Constitution has provisions for the House of Representatives to decide the election if there is not a clear majority. There, each state gets one vote until someone gets a majority. This has only been needed twice, in 1800 and 1824.
*The Supreme Court system is especially removed from the people. The President, indirectly elected, nominates judges who are confirmed by the indirectly elected Senate. Removal of judges is very hard, and judges serve for life, so that it’s hard for the people to influence them.
*Unlike the Articles of Confederation, which did not come into effect until all the states agreed, this only needs nine to ratify it. Still, it will not be easy.
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This page last updated 30 August, 2003.