The Constitution: A Second Draft of American Democracy

This lesson was reported from:
A chapter of The United States: An Open Ended History, a free online textbook.  Adapted in part from open sources.

Constitutional Convention

By the time the Northwest Ordinance was enacted, American leaders were in the midst of drafting a new and stronger constitution to replace the Articles of Confederation. Already a legend in his own lifetime, George Washington was a vocal critic of the Articles, had written accurately that the states were united only by a “rope of sand.” Disputes between Maryland and Virginia over navigation on the Potomac River led to a conference of representatives of five states at Annapolis, Maryland, in 1786. One of the delegates, Alexander Hamilton of New York, convinced his colleagues that commerce was bound up with large political and economic questions. What was required was a fundamental rethinking of the Confederation.

The Annapolis conference issued a call for all the states to appoint representatives to a convention to be held the following spring in Philadelphia. The Continental Congress was at first indignant over this bold step, but it acquiesced after Washington gave the project his backing and was elected a delegate. During the next fall and winter, elections were held in all states but Rhode Island.

A remarkable gathering of notables assembled at what came to be called the Constitutional Convention in May 1787. The state legislatures sent leaders with experience in colonial and state governments, in Congress, on the bench, and in the army. Washington, regarded as the country’s first citizen because of his integrity and his military leadership during the Revolution, was chosen as presiding officer.

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The signing of the Constitution of the United States

From Pennsylvania came Benjamin Franklin, nearing the end of an extraordinary career of public service and scientific achievement. From Virginia came James Madison, a practical young statesman, a thorough student of politics and history, and, according to a colleague, “from a spirit of industry and application … the best-informed man on any point in debate.” He would be recognized as the “Father of the Constitution.”

From New York came Alexander Hamilton, who had proposed the meeting. Absent from the Convention were Thomas Jefferson, who was serving as minister representing the United States in France, and John Adams, serving in the same capacity in Great Britain. Youth predominated among the 55 delegates—the average age was 42.

Congress had authorized the Convention merely to draft amendments to the Articles of Confederation but, as Madison later wrote, the delegates, “with a manly confidence in their country,” simply threw the Articles aside and went ahead with the building of a wholly new form of government.

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Independence Hall’s Assembly Room, where the delegates worked through summer heat in 1787.

They recognized that the paramount need was to reconcile two different powers—the power of local control, which was already being exercised by the 13 semi-independent states, and the power of a central government. They adopted the principle that the functions and powers of the national government—being new, general, and inclusive—had to be carefully defined and stated, while all other functions and powers were to be understood as belonging to the states. But realizing that the central government had to have real power, the delegates also generally accepted the fact that the government should be authorized, among other things, to coin money, to regulate commerce, to declare war, and to make peace.

Debate and Compromise

The 18th-century statesmen who met in Philadelphia were adherents of Montesquieu’s concept of the separation of powers in politics. This principle was supported by colonial experience and strengthened by the writings of Montesquieu, with which most of the delegates were familiar. These influences led to the conviction that three equal and coordinate branches of government should be established. Legislative, executive, and judicial powers were to be so harmoniously balanced that no one could ever gain control. The delegates agreed that the legislative branch, like the colonial legislatures and the British Parliament, should be bicameral, consisting of two houses.

On these points there was unanimity within the assembly. But sharp differences also arose. Representatives of the small states—New Jersey, for instance—objected to changes that would reduce their influence in the national government by basing representation upon population rather than upon statehood, as was the case under the Articles of Confederation.

On the other hand, representatives of large states, like Virginia, argued for proportionate representation. This debate threatened to go on endlessly until Roger Sherman came forward with with a plan that came to be known as the Great Compromise – for representation in proportion to the population of the states in one house of Congress, the House of Representatives, and equal representation in the other, the Senate.

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Quaker John Dickinson argued forcefully against slavery during the Convention. Once Delaware’s largest slaveholder, he had freed all of his slaves by 1787.

Almost every succeeding question raised new divisions, to be resolved only by new compromises. Northerners wanted slaves counted when determining each state’s tax share, but not in determining the number of seats a state would have in the House of Representatives. According to the Three-Fifths Compromise reached with little dissent, tax levies and House membership would be apportioned according to the number of free inhabitants plus three-fifths of the slaves.

Laboring through a hot Philadelphia summer, the convention finally achieved a draft incorporating in a brief document the organization of the most complex government yet devised – one which could only carry out enumerated powers, those powers listed in the Constitution. It would have full power to levy taxes, borrow money, establish uniform duties and excise taxes, coin money, regulate interstate commerce, fix weights and measures, grant patents and copyrights, set up post offices, and build post roads. It also was authorized to raise and maintain an army and navy, manage Native-American affairs, conduct foreign policy, and wage war. It could pass laws for naturalizing foreigners and controlling public lands; it could admit new states on a basis of absolute equality with the old. The power to pass all necessary and proper laws for executing these clearly defined powers rendered the federal government able to meet the needs of later generations and of a greatly expanded body politic.

The principle of separation of powers had already been given a fair trial in most state constitutions and had proved sound. Accordingly, the convention set up a governmental system with separate legislative, executive, and judiciary branches, each with powers of checks and balances to limit each other. Thus congressional enactments were not to become law until approved by the president. And the president was to submit the most important of his appointments and all his treaties to the Senate for confirmation. The president, in turn, could be impeached and removed by Congress. The judiciary was to hear all cases arising under federal laws and the Constitution; in effect, the courts were empowered to interpret both the fundamental and the statute law. But members of the judiciary, appointed by the president and confirmed by the Senate, could also be impeached by Congress.

checks

Ratification and the Bill of Rights

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The Rising Sun Chair George Washington used during the Constitutional Convention.

On September 17, 1787, after 16 weeks of deliberation, the finished Constitution was signed by 39 of the 42 delegates present. Franklin, pointing to the half‑sun painted in brilliant gold on the back of Washington’s chair, said:

I have often in the course of the session … looked at that [chair] behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting, sun.

The convention was over; the members “adjourned to the City Tavern, dined together, and took a cordial leave of each other.” Yet a crucial part of the struggle for a more perfect union remained to be faced. The consent of popularly elected state conventions was still required before the document could become effective.

The convention had decided that the Constitution would take effect upon ratification by conventions in nine of the 13 states. By June 1788 the required nine states had ratified the Constitution, but the large states of Virginia and New York had not. Most people felt that without their support the Constitution would never be honored. To many, the document seemed full of dangers: Would not the strong central government that it established tyrannize them, oppress them with heavy taxes, and drag them into wars?

Differing views on these questions brought into existence two parties, the Federalists, who favored a strong central government, and the Antifederalists, who preferred a loose association of separate states. Impassioned arguments on both sides were voiced by the press, the legislatures, and the state conventions.

In Virginia, the Antifederalists attacked the proposed new government by challenging the opening phrase of the Constitution: “We the People of the United States.” Without using the individual state names in the Constitution, the delegates argued, the states would not retain their separate rights or powers. Virginia Antifederalists were led by Patrick Henry, who became the chief spokesman for back-country farmers who feared the powers of the new central government. Wavering delegates were persuaded by a proposal that the Virginia convention recommend a bill of rights, and Antifederalists joined with the Federalists to ratify the Constitution on June 25.

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An advertisement for The Federalist, 1787, using the pseudonym “Philo-Publius.”

In New York, Alexander Hamilton, John Jay, and James Madison pushed for the ratification of the Constitution in a series of essays known as The Federalist Papers. The essays, published in New York newspapers, provided a now-classic argument for a central federal government, with separate executive, legislative, and judicial branches that checked and balanced one another. With The Federalist Papers influencing the New York delegates, the Constitution was ratified on July 26.

Fear of a strong central government was only one concern among those opposed to the Constitution; of equal concern to many was the fear that the Constitution did not protect individual rights and freedoms sufficiently. Virginian George Mason, author of Virginia’s Declaration of Rights of 1776, was one of three delegates to the Constitutional Convention who had refused to sign the final document because it did not enumerate individual rights. Together with Patrick Henry, he campaigned vigorously against ratification of the Constitution by Virginia. Indeed, five states, including Massachusetts, ratified the Constitution on the condition that such amendments be added immediately.

When the first Congress convened in New York City in September 1789, the calls for amendments protecting individual rights were virtually unanimous. Congress quickly adopted 12 such amendments; by December 1791, enough states had ratified 10 amendments to make them part of the Constitution. Collectively, they are known as the Bill of Rights. Among their provisions: freedom of speech, press, religion, and the right to assemble peacefully, protest, and demand changes (First Amendment); protection against unreasonable searches, seizures of property, and arrest (Fourth Amendment); due process of law in all criminal cases (Fifth Amendment); right to a fair and speedy trial (Sixth Amendment); protection against cruel and unusual punishment (Eighth Amendment); and provision that the people retain additional rights not listed in the Constitution (Ninth Amendment).

Since the adoption of the Bill of Rights, only 17 more amendments have been added to the Constitution. Although a number of the subsequent amendments revised the federal government’s structure and operations, most followed the precedent established by the Bill of Rights – they expanded rather than limited individual rights and freedoms, in particular to the women and people of color who had originally been excluded when Jefferson wrote the words “All men are created equal…”

The article was adapted in part from:

  1. The Formation of a National Government

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