The Constitution

Creation of the Constitution

The United States was not the first country to have a "constitution." People in England, the mother country of the American colonies, also used that term to describe the rules structuring their government. But to the British, the constitution was not a single document or code. It was not something they could print on expensive paper or preserve in a museum. It was simply all the various laws and customs that determined how their government was "constituted" — how it normally behaved. 

Americans of the Revolutionary War era took this concept to a new level. Many saw the relationship between rulers and ruled as a contract, one that gave citizens responsibilities but also placed obligations on their leaders. There were things the government was permitted to do, and other things that were forbidden. But how would leaders know their privileges and their limits without some kind of guidance? How could citizens know whether their government was violating the bargain, unless a list of Do's and Don'ts existed somewhere? 

The Constitution of the United States evolved to fulfill this desire for a binding contract. It enumerated (listed) the powers available to the national government and explicitly forbid other actions (a list that grew with the first several amendments). The U.S. Constitution therefore defined the basic structure of national government, but it did so in a fundamentally new way — because it was a written code that the government lacked authority to change. For this reason, the U.S. Constitution is considered the oldest working constitution in the world. 

The Continental Congress

Twelve of the 13 colonies sent representatives to the First Continental Congress,which met in Philadelphia in September 1774. At that meeting, resolutions and a statement of rights and principles were adopted that still looked to a peaceful settlement with Great Britain. The Second Continental Congress convened in May 1775, after the battles of Lexington and Concord. Without legal authority to do so, the Second Continental Congress assumed governmental functions. It established a postal system, created a navy and marine corps, negotiated treaties with the Native Americans, and looked for allies overseas. Most important, the Congress formally voted to declare independence from Great Britain. 

The Declaration of Independence

Written chiefly by Thomas Jefferson, the Declaration of Independence (adopted July 4, 1776, by the Second Continental Congress) provided the specific reasons for the break with Great Britain. Its philosophical justification drew heavily from John Locke's Two Treatises of Government (1690). Locke argued that people have natural rights — "Life, Liberty, and the pursuit of Happiness," in Jefferson's words — that cannot be taken away. Governments, which get their power from the consent of the governed, are created to protect these rights. When a government fails to do so, the people have a right to abolish it and create a new form of government. 

State constitutions

The idea that the people were the source of power was also included in many of the new state constitutions. Having just rebelled against the king, most states severely limited executive power. The legislatures were supreme, and in many instances not only made the laws but also appointed the governors, judges, and other officials. Individual liberties were usually safeguarded. The state legislatures continued to enjoy considerable authority under the Articles of Confederation

The Articles of Confederation

The Articles of Confederation were adopted by the Second Continental Congress on November 15, 1777, but did not become effective until March 1, 1781, when they were finally approved by all 13 states. Under the Articles, the national government consisted of a unicameral (one-house) legislature (often called the Confederation Congress); there was no national executive or judiciary. Delegates to Congress were appointed by the state legislatures, and each state had one vote. Congress had the authority to declare war, develop foreign policy, coin money, regulate Native American affairs in the territories, run the post office, borrow money, and appoint army and navy officers. Quite significantly, however, all powers not specifically delegated to Congress belonged to the states. 

Weaknesses of the Articles of Confederation

Congress did not have the direct power to tax or to regulate interstate and foreign trade. It could only ask the states for money with no means to compel payment, and the states had the right to impose their own duties on imports, which caused havoc with commerce. Congress had no authority to raise an army on its own and had to requisition troops from the states. All major policy issues — war and peace, treaties, the appropriation of funds — required the approval of nine states. The Articles reflected the nation's concern about executive power; however, the lack of an executive meant there was no effective leadership. A unanimous vote of the states, acting through their legislatures, was necessary to amend the Articles. 

Calls to strengthen the national government

The need for a stronger national government was aired by the representatives of five states, including Alexander Hamilton and James Madison, at the Annapolis Convention (September 1786). The inability of Congress to deal with Shay's Rebellion(winter of 1786–1787), a revolt of debtor farmers in western Massachusetts, made the shortcomings of the Articles clear. In February 1787, Congress agreed to hold another meeting "for the sole and express purpose of revising the Articles of Confederation." 

The Constitutional Convention

Fifty-five delegates from 12 states (Rhode Island did not participate) met in Philadelphia in May 1787. While authorized only to "revise" the Articles of Confederation, the participants moved quickly to develop a new structure for the government. 

The Virginia Plan

The early debates centered on a proposal by James Madison known as the Virginia Plan. Supported by the large states, it called for a bicameral (two-house) legislature empowered to make laws. The lower house was elected by voters in each state, and the upper house was chosen by the lower house from candidates nominated by the state legislatures. Representation in both houses was based on population. The executive was chosen by the legislature for one term and was responsible for executing all laws. The legislature also appointed the judges to one or more supreme courts and lower national courts. A Council of Revision made up of the executive and judges could veto laws passed by the legislature or the states; a vote by both houses was needed to override a veto by the Council. 

The New Jersey Plan

The small states supported a less radical departure from the Articles of Confederation. The New Jersey Plan kept the one-house legislature, with its powers expanded to include raising revenue and regulating commerce. Each state had one vote, and the members were chosen by the state legislatures. A multiperson executive elected by the legislature was proposed. The executives, who were removable by action of the majority of the governors, also appointed judges to the Supreme Court. Laws passed by the legislature were binding on the states, and the multiperson executive was authorized to compel obedience to the law. 

The Great Compromise

The New Jersey Plan was rejected, but the apportionment of representation in Congress continued to divide the Convention. The large states wanted proportional representation (by population), and the small states demanded equal representation (one state, one vote). The Great Compromise (also known as the Connecticut Compromise) provided that seats in the House of Representatives would be apportioned according to the population of each state, with members elected directly by the people. In the Senate, each state would have two senators, voting independently, chosen by their legislatures. 

Decisions on slavery

Slaves were a significant percentage of the population in the Southern states. The issue of whether or how to count slaves was resolved by a formula used by Congress in 1783. For purposes of representation in the House and assessing direct taxes to the states, population was determined by adding the "whole number of free persons" and "three-fifths of all other persons." The phrase "all other persons" meant slaves. In addition to adopting the Three-Fifths Compromise, the delegates to the Convention allowed the slave trade to continue by denying Congress the power to prohibit it before 1808 and agreed that fugitive slaves should be returned to their masters. 

Compromise over the presidency

The Convention accepted a one-person executive but hotly debated how the president should be elected (by Congress or the people) and the term of office. The solution was the Electoral College. The legislatures of each state chose electors equal to their total number of representatives in Congress. The electors then voted for two people, one of whom could not be from their state. The individual who received the most votes became president and the person with the next highest total became vice president. In the event of a tie, the House of Representatives decided the election and each state had one vote. The president's term of office was set at four years, and no express limit was put on the number of terms. 

Key Concepts in the Constitution

The Constitution, which was approved by the delegates to the Convention on September 17, 1787, established a republican form of government, explained the organization of that government, and outlined the federal system. 

Republican form of government

The Constitution established the United States as a republic in which power ultimately is in the hands of the people and is exercised by their elected representatives. The Republic was not a democracy in the modern sense, however. The framers of the Constitution, many reluctantly, accepted slavery. There were property qualifications for voting, and some states denied the right to vote to religious minorities. Women did not get to vote in the national elections until 1920 (Nineteenth Amendment). The original draft of the Constitution did not include protection of basic civil liberties. 

The organization of government

The government's functions are divided among three branches: the legislative branch that makes the laws (Congress), the executive branch that carries out the laws (president), and the judicial branch that interprets the laws (courts). This division is known as the separation of powers. In addition, under the system of checks and balances, the powers of one branch of government are limited by the powers given to another branch. Congress makes laws, but the president can veto legislation. Congress can override a president's veto with a two-thirds vote of both houses (a check on a check). While the president appoints judges to the Supreme Court, the Senate can reject an appointee through its power to give "advice and consent." 

The federal system

Federalism means the division of power between the national government and the states. The Constitution does not clearly define, however, the areas in which these powers are exercised. Keeping in mind that the framers were determined to strengthen the national government, it is not surprising that the powers belonging to the states were left vague. 

Summary of the Constitution

The Constitution was a spare document, providing few details about how the U.S. government would run itself. It explained the rough organization of the three branches, how they would interact with the states, and how the document could be amended. Filling in the details was left to future leaders. 

Article I

The longest article in the Constitution vests legislative power in the Senate and the House of Representatives. It describes the organization of Congress and lists its specific powers, known as enumerated or delegated powers. Through the necessary and proper clause (also called the elastic clause), Congress can make laws needed to carry out its enumerated powers. Article I also lists the powers denied to Congress and the states. 

Article II

This article deals with the executive branch and describes the election of the president (and vice president), the qualifications for holding the office, and the procedures if a president can no longer serve. The powers of the president include serving as commander in chief of the army and navy, making treaties, and, with the "advice and consent of the Senate," appointing ambassadors, officials, and Supreme Court justices. The president is required to periodically report to Congress on the state of the union, can propose legislation, and can call Congress into special session. 

Article III

This article established the Supreme Court and authorizes Congress to establish lower federal courts. The types of cases the courts have jurisdiction over are given, and a provision is made for the right to trial by jury. While not specifically stated, the power of the courts to declare a law unconstitutional is implied. 

Article IV

The full faith and credit clause requires that the legislative and judicial actions of one state be honored by the other states. Additionally, a citizen of any state has the same privileges as citizens of all the other states. Article IV also provides for adding new states to the union, guarantees each state a republican form of government, and ensures protection against invasion or domestic violence. 

Article V

The process for amending the Constitution is described. The states are responsible for ratifying amendments. 

Article VI

The Constitution, the laws of the United States, and treaties entered into by the United States are the supreme law of the land. This is known as the supremacy clause.

Article VII

Approval by conventions of nine of the states was required to ratify the Constitution. 

The Debate over Ratification

 The debate over ratification was waged in the newspapers, through pamphlets, and on the floor of the state conventions, where the vote was often close. Those who favored the strong national government provided for in the Constitution called themselves the Federalists; their opponents became the Antifederalists.

The Antifederalists

The Antifederalists believed that the Constitution gave too much power to the central government and left the states with too little. Strong proponents of individual liberty, they vigorously criticized the omission of a bill of rights, which was included in many state constitutions. Some considered the ratification process itself illegal, because unanimous consent from the states was required to amend the Articles of Confederation. 

The Federalists

The case for the Constitution was effectively presented in a series of newspaper articles that were written by Alexander Hamilton, John Jay, and James Madison, collectively known as The Federalist Papers. The Federalists argued that the new government would not be dominated by any one group and that there were adequate safeguards to protect individuals and the states. 

On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution. Two key states — Virginia and New York — gave their approval during the next month. An important factor in swaying the state conventions was a commitment from the Federalists to add a bill of rights after ratification. 

The Amendment Process and Bill of Rights

 The Constitution (Article V) provides that amendments can be proposed either by Congress, with a two-thirds vote of both houses, or by a national convention requested by two-thirds of the state legislatures. Amendments are ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. Only the Twenty-first Amendment, which repealed Prohibition in 1933, was adopted by state conventions. 

The Bill of Rights

Congress proposed 12 amendments in September 1789; three-fourths of the states approved ten of them in December 1791, creating the Bill of Rights. The following list summarizes the Bill of Rights: 

• Prohibits the establishment of a state religion and protects freedom of the press and speech and the rights to assemble and petition the government (Amendment I)

• Guarantees the right to keep and bear arms in the context of a state militia (Amendment II)

• Prohibits the stationing of troops in homes without consent (Amendment III)

• Protects against unreasonable searches and seizures and requires probable causefor search warrants (Amendment IV)

• Establishes a grand jury to bring indictments in capital or serious cases, protects against double jeopardy (a person cannot be tried twice for the same crime) and self-incrimination (individuals cannot be forced to testify against themselves), and guarantees due process and eminent domain (compensation must be paid for private property taken for public use) (Amendment V)

• Guarantees the right to a speedy trial by an impartial jury in criminal cases, to be informed about charges, and to have representation by counsel (Amendment VI)

• Provides for trial by jury in most civil cases (Amendment VII)

• Prohibits excessive bail or fines and cruel and unusual punishments (Amendment VIII)

• Does not deny people any rights not specifically mentioned in the Constitution (Amendment IX)

• Gives to the states or the people powers not granted to Congress or denied to the states (Amendment X)

Subsequent amendments to the Constitution

Since the enactment of the Bill of Rights, the amendment process has been used sparingly. While numerous amendments have been proposed in Congress, only a handful have gone to the states for action. An additional 17 amendments to the Constitution have been ratified over the last 200 years; six proposals failed to win enough support — most recently, the Equal Rights Amendment, strongly backed by women's groups, and an amendment to give the District of Columbia full representation in Congress. The country has used the amendment process once to promote a particular social policy; Amendment XVIII (1919) prohibited the manufacture and sale of intoxicating liquors but was repealed in 1933 (Amendment XXI). The other amendments either address how the government operates or expand equality. Table 1 provides a brief summary of the amendments added to the Constitution since the enactment of the Bill of Rights.