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1.3: The Constitution

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    204104
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    America is a nation of laws. Its people and institutions are bound by rules telling them what they must do and what they must not do. When we think about laws, what usually come to mind first are statutes. A statute statute: A specific law passed by a legislature. is a law passed by a legislature for some specific purpose, such as a new tax, a disaster relief package, or a ban on a hazardous chemical.

    What gives legislatures the right to pass laws? It cannot be that they passed laws giving themselves the ability to pass laws, for in order to do so they must already have had that ability. Rather, they draw their legitimacy from another type of law, not passed by a legislature, laying out the process by which laws can be made. This type of law is a constitution, a set of basic laws that structure a government. A constitution is the rules by which all other rules are made.

    Photograph of Independence Hall in Philadelphia, Pennsylvania
    Independence Hall, meeting site of the Constitutional Convention, still stands in Philadelphia’s Old City neighborhood.

    Written in 1787 and ratified by the states in 1788, the United States Constitution is the oldest active codified constitution in the world today. (San Marino’s and the United Kingdom’s constitutions are older but uncodified, meaning parts of them are not technically written into law.) Parts of it have changed since then, but its core has remained intact and in use for almost a quarter of a millennium. This level of constitutional stability is unusual among the world’s countries. In the time since America adopted its current constitution, France has adopted 16 constitutions, and the Dominican Republic has adopted 32 constitutions.

    The U.S. Constitution is not without controversy. People disagree on how to interpret the words of the Founders, which are often vague and nonspecific. Many also feel strongly that certain things should be added to, removed from, or changed in the Constitution. Still, the durability and longevity of the Constitution suggest the Founders hit upon some fundamental truths about politics and power when they designed America’s system of government. To understand their way of thinking, it helps to remember the historical context in which the Constitution was written.

    The Declaration of Independence

    Before America became an independent country, it was a set of 13 British colonies, established between 1607 and 1732. The first inhabitants of these colonies included European entrepreneurs looking to make or increase their fortunes in the New World, religious outcasts fleeing persecution in other lands, native peoples who saw their territory decrease in size as the new settlements became larger and more numerous, and slaves bought or captured in Africa and shipped across the Atlantic Ocean.

    By the 1770s, over two million people lived in colonial America. The colonies were governed by the British parliament and by decrees issued by the King of Great Britain, George III. The colonials generally regarded themselves as British subjects — which they were — but a distinctly American culture had begun to emerge.

    Being governed by a distant King and Parliament displeased the colonials. The British Crown placed heavy tax burdens on the colonies to pay off its war debts and imposed many economic and political restrictions. Unlike British subjects living in Great Britain, the colonials had no voting representation in Parliament, meaning they could not influence or block these laws. Popular sovereignty was lacking: the colonials were ruled by a government in which they had no formal say and which ignored their appeals for relief from the negative effects of its policies.

    After many failed attempts to persuade King George III to address their concerns, the colonials took extreme action. The Second Continental Congress, comprising delegates from all 13 colonies, signed the Declaration of Independence, a document written mainly by Thomas Jefferson.

    The first part of the Declaration (which you can find in Appendix A) tallied the colonials’ grievances against the King. He had failed to pass laws the colonies wanted, and would not allow colonial governments to pass them in his name. He controlled the appointment of colonial judges, causing them to be biased in favor of the Crown in court cases. Large numbers of British troops were present in the colonies even during peacetime, forcing colonials to provide them free room and board. The British parliament had imposed burdensome taxes on the colonials, who lacked representation in Parliament to speak and vote against those taxes.

    The Declaration of Independence was highly critical of King George III, labeling him a “tyrant.” However, most of its complaints were not specific to King George III. Had they been, the colonials might have demanded that the King abdicate and allow himself to be replaced by a better ruler. Rather, the Declaration made it clear that the problems were rooted in the British monarchy itself, and would therefore persist no matter who was King. Because of this, the only sensible solution in the colonials’ view was “to throw off such government” — to declare their independence — and “to institute new government” to prevent these problems from recurring.

    In the opinion of the delegates who signed the Declaration of Independence, America was already an independent country even before the ink had dried on the parchment. From the King’s perspective, America was simply a rebellious region of the British Empire that needed to be reminded who was in charge. The American Revolutionary War was fought between the two sides to settle this dispute. Had the colonials lost, the British Crown would have restored control over the colonies, and the Declaration would have gone down in history as the treasonous spark of a failed insurrection. But the colonials — henceforth the Americans — won their war for independence, and in 1783 the British government acknowledged as much by signing the Treaty of Paris, ending the war and establishing the United States as a free and independent nation.

    When the 56 men whose names appear at the bottom of the Declaration of Independence declared “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor,” it was not just a figure of speech. They knew war was coming, and that if they lost they would have signed their own death warrants by adding their names to the Declaration.

    With the benefit of hindsight, it’s easy for us to envision ourselves confidently signing our names alongside theirs with untrembling hands. We tend to underestimate the courage it took to do what they did, because we, unlike them, never had to imagine our own necks in a traitor’s noose.

    The Articles of Confederation

    As far as the Americans were concerned, the Declaration of Independence severed their ties with Great Britain. That meant the 13 former colonies were now without a national government. War was looming, and they needed a new institutional structure to replace the one they had just cast off. Otherwise, the American war effort would be a disorganized mess, incapable of countering the military might of the British Empire.

    In 1777, the Second Continental Congress — the same one that signed the Declaration of Independence — drafted the Articles of Confederation, America’s first constitution. The Articles, which went into effect in 1781 after being ratified by the states, established a barebones national government. Congress consisted of a single chamber, in which each state was represented by between two and seven delegates but had only one vote, regardless of its population. Nine of the 13 states had to vote for a law for it to pass, and amending the Articles themselves required the support of all 13. There was no independent executive or judiciary; Congress could (and did) elect presidents from among its members, but those presidents could only wield the limited powers Congress decided to grant them.

    The Articles of Confederation were effective enough for the Americans to fend off the British army and secure their independence, but not by much. Congress tried to raise money through taxes to fund the war effort, but the collection of those taxes was up to the states, which often refused to pay some or all of what they owed. This left the Continental Army led by George Washington constantly low on vital supplies, forcing Washington himself to repeatedly beg Congress for enough money to feed, clothe, and arm his soldiers.

    After the war, the Articles of Confederation continued to cause problems for the newly independent nation by failing to resolve conflicts between states. Sometimes these conflicts were territorial, with two states claiming the same piece of land and arguing over borders. Other times they were economic, with states owing money to other states and passing laws canceling their debts or printing worthless paper money to pay them off. Under the Articles, the national government lacked the authority to settle these disputes; even if Congress decided that one state was in the wrong, it had no power to enforce its decision.

    The problems with the Articles were laid bare in 1786, when a Massachusetts farmer named Daniel Shays organized a debtors’ revolt. Shays, a former captain in the Continental Army, had left the army without ever receiving his five years’ worth of officer’s pay. Deep in debt, Shays led thousands of citizens in a protest to obstruct the proceedings of the Massachusetts state government, which was jailing debtors and confiscating their property. Congress tried and failed to generate enough tax money from the states for a military force to quash Shays’ Rebellion, which was eventually broken up by a combination of the Massachusetts state militia and a privately funded local militia.

    Shays’ Rebellion forced America to reckon with the fundamental failing of the Articles of Confederation. The weak national government they had designed reflected their suspicion of centralized power, which they feared would lead to tyranny like what they had endured under British rule. They had good reason to be wary, but in their efforts to avoid a tyrannical government they had created an ineffectual one, powerless to resolve interstate disputes or respond to national emergencies. Shays’ Rebellion did not bring the fledgling nation crashing down, but without a major change to America’s system of government it was only a matter of time before some other crisis would.

    The Constitutional Convention

    In the summer of 1787, 12 states — all but Rhode Island — sent delegates to Philadelphia to revise the Articles of Confederation. Today, this meeting is known as the Constitutional Convention, although at the time it was not referred to as such. The official purpose of the convention was revision, but even before it began many delegates had already concluded that the Articles were hopelessly flawed and that the only solution was to craft an entirely new constitution from scratch.

    Not all of the 55 delegates who gathered in Philadelphia’s Independence Hall shared this view. Some were concerned that a stronger national government would threaten their prized liberties. Virginia delegate Patrick Henry, who had famously proclaimed “Give me liberty or give me death!” in a fiery speech prior to the Revolutionary War, refused to attend the convention at all, claiming that he “smelt a rat” in Philadelphia. Others, including New York’s John Lansing and Robert Yates, left early when they realized that the government outlined in the new constitution would be much stronger than the one established by the Articles.

    For more than three months, the Constitutional Convention brainstormed and debated how to design a government strong enough to bind the Union together but limited enough to prevent tyranny. George Washington was elected president of the convention but did not make many speeches, preferring to act as an impartial moderator. Some delegates arrived late or left early, either to attend to personal matters or in protest against the convention’s activities. Independence Hall was hot and stuffy in the Philadelphia summer, but all of the windows stayed closed with the curtains drawn so that the delegates could speak freely without fear of being overheard by passersby.

    In the end, 39 of the 55 delegates affixed their signatures to the new constitution. Not everyone was satisfied with the result: Virginia delegate George Mason, claimed he would rather chop off his right hand than use it to sign the document. Benjamin Franklin did sign, reasoning that, while he disliked some aspects of the new constitution, he might grow to like them in the future, and that even if he didn’t the new design was still a major improvement on the Articles.

    The Constitution of the United States

    The U.S. Constitution departed from the Articles of Confederation in several key ways. One major change involved the balance of power between national and state governments: the confederal system which existed under the Articles was replaced with a federal system which increased the national government’s power over the states. The purpose of this change was to make America less like a loose league of feuding countries and more like a unified nation — or, as the Founders put it in the Preamble to the Constitution, “to form a more perfect Union.”

    Under the new constitution, Congress would have two chambers instead of one: a House of Representatives and a Senate. This change resolved a dispute between large states and small states at the convention. Delegates from large states wanted congressional representation to be proportional to each state’s population, arguing that it was only fair for more populous states to have more influence in Congress, because they had more citizens who would be subject to Congress’s laws. Small-state delegates wanted to preserve the equal representation for states as outlined in the Articles, fearful of being constantly outvoted by larger states and forced to accept laws that went against their interests. To settle the disagreement, Roger Sherman and Oliver Ellsworth proposed the Great Compromise (sometimes called the Connecticut Compromise, as Sherman and Ellsworth were delegates from Connecticut), under which the House would be proportional according to population and the Senate would be equal, with each state electing two senators.

    Because representation in the House of Representatives would be determined by population, the Founders needed to establish how each state’s population would be counted. This seemingly simple process was complicated by the issue of slavery, as demonstrated in Figure 3.1 below. Delegates from Southern states wanted to count slaves when determining population, because doing so would increase their number of votes in the House of Representatives (even though slaves themselves would not have the right to vote). Delegates from Northern states hoped that not counting slaves would hasten the end of slavery by reducing Southern states’ power in Congress. This dispute was resolved by the Three-Fifths Compromise, which established that slaves would be counted as three-fifths of a person for determining each state’s representation in the House.

    The Three-Fifths Compromise is sometimes misunderstood as an attempt to dehumanize slaves by declaring them to be worth 40% less than free persons. This myth falls apart upon closer inspection: the more slaves counted for in states’ populations, the more influence Southern states would have in Congress to perpetuate the institution of slavery. The Three-Fifths Compromise had nothing to do with a slave’s “worth” relative to a free person and everything to do with the states jockeying for power. In this contest, slaves were merely mathematical pawns.

    Another change from the Articles was that the new Congress had lower thresholds for passing laws and amendments. Although laws would now need to be passed by two chambers instead of one, they would only require majority support in each chamber to pass. The amendment process was also made easier. Unanimous consent was no longer needed to pass an amendment; instead, amendments only required the support of two thirds of Congress (or of a national constitutional convention) and three fourths of all states. This ensured that no single state’s opposition could block constitutional reform (the flaw which had made the Articles virtually unamendable). Congress would also be empowered to make all laws deemed “necessary and proper” for carrying out its duties, according to the necessary and proper clause in Article I.

    Bar chart showing populations of free persons and slaves in the original 13 states in 1790, according to the U.S. Census Bureau
    Figure 3.1: Populations of the original 13 states, 1790 (Source: U.S. Census Bureau)

    Besides changing Congress, the Constitution also added an independent chief executive — the president — and an independent Supreme Court. Unlike the weak executives under the Articles of Confederation who were chosen by Congress and wielded only the powers Congress decided to give them, the new presidents would be chosen by an Electoral College and have a set of powers granted by the Constitution. Likewise, the Supreme Court would consist of judges appointed for life with the authority to settle disputes between the states. Both the presidency and the Supreme Court were included to prevent the problems under the Articles that had been caused by Congress’s inability to enforce its laws, respond quickly to crises, and pacify squabbling states.

    Principles of the Constitution

    Although most delegates at the Constitutional Convention recognized the need for a stronger national government, they were also aware of the dangers such a government would pose. The powers granted by the Constitution could be used for the good of the country, but they could also be abused if they fell into the wrong hands. Without safeguards to prevent such abuse, America might suffer the same sort of tyranny it had endured under British rule, if not a worse one.

    To prevent the new national government from getting out of hand, the Constitution introduced a system of separation of powers. Rather than vest all power in a single person or institution, the Constitution divided it among three branches: a legislative branch (Congress), an executive branch (the presidency), and a judicial branch (the Supreme Court and other federal courts). Dividing power in this fashion would make it harder for a tyrant to take control. Even if America elected a bad president, that president would only have access to roughly one-third of the government’s capabilities.

    Alongside separation of powers, the Constitution also implemented a system of checks and balances: each of the three branches possessed certain abilities to limit or block the actions of the other two. This gave each branch a degree of control over the other branches, preventing any one branch from exercising unchecked power. The president could veto bills passed by Congress, but Congress could override vetoes if the bills had enough support and could even remove the president through the impeachment process. The federal courts could strike down laws and executive actions as unconstitutional, but Congress and the president would select the judges who sat on those courts. Figure 3.2 below lists ways in which the three branches can check one another.

    Chart showing the checks and balances between the three branches of the U.S. government as specified in the Constitution
    Figure 3.2: Checks and balances in the U.S. Constitution

    The Constitution’s separation of powers and checks and balances reflect the Founders’ distrust of politicians. They recognized that not all presidents, members of Congress, and judges would be devoted to America’s national interest and the principles of limited government. On the contrary, they anticipated that the new, more powerful American government would attract ambitious, power-hungry people with selfish motivations for holding public office. For this reason, they designed a system to channel that selfishness for good. In theory, the branches would, by hoarding their powers from one another, prevent any one branch from becoming too potent. Even office-holders who only wanted to increase their own power would have a self-interested reason to use their checks in a way that the Founders hoped would prevent tyranny.

    Ratification

    After the Constitution was written and signed, it was the states’ turn to decide to accept or reject it. Article VII of the Constitution specified that the new American government would not be officially established until nine states had ratified the Constitution. Twelve states — with Rhode Island again being the exception — elected delegates to statewide ratifying conventions to vote on whether they should approve the new plan for American government.

    The ratification debate was a crucial moment in American history. The delegates to the Constitutional Convention had clearly not kept to their stated purpose of proposing amendments to the Articles of Confederation. Instead, they had designed an entirely new system of government and were essentially asking the states to secede from the old system and join the new one. What they were attempting was nothing short of a rebellion against the existing government — a bloodless rebellion with noble intentions, but a rebellion nonetheless.

    Leading the fight in favor of ratifying the Constitution was a faction calling themselves the Federalists, which included George Washington, Benjamin Franklin, Alexander Hamilton, and James Madison. The Federalists had supported a stronger national government during the Constitutional Convention and were generally satisfied with the final document the convention produced. They believed separation of powers and checks and balances would prevent the new American government from using its new powers in a tyrannical fashion.

    Photograph of the interior of the National Archives Building in Washington, D.C.
    Tourists visit the National Archives Building in Washington, D.C., where America’s founding documents are displayed beneath a mural of 25 signers of the Constitution.

    Opposing ratification and the Federalists were the Anti-Federalists, including Samuel Adams, George Clinton, Patrick Henry and George Mason. To the Anti-Federalists, the Constitution represented a major power grab by the national government that would strip the states of their sovereignty and leave America back where it started: with an oppressive government and no safeguards for the rights of the people. Their perspective was informed by historical examples of countries, such as the Roman Republic, that had attempted large-scale democratic government only to fall back on imperial or monarchic systems instead.

    The Federalists and Anti-Federalists waged a war of words at the state ratifying conventions and in the press. After the Constitutional Convention, essays by Anti-Federalists began appearing in New York newspapers criticizing the new Constitution and urging the states to reject it. The authors of these essays often wrote pseudonymously, using pen names such as “Cato” and “Brutus” to underscore their argument that the Constitution would lead to tyranny. (Cato was a Roman senator who committed suicide rather than live under Julius Caesar’s dictatorial rule; Brutus was one of the senators who eventually stabbed Caesar.)

    In response, three Federalists — Alexander Hamilton, James Madison, and John Jay — wrote 85 essays (known today as the Federalist Papers) defending the Constitution, using the shared pen name “Publius” in honor of one of the founders of the Roman Republic. The Federalist Papers responded directly to the Anti-Federalists’ arguments by explaining and justifying each part of the Constitution. Hamilton wrote the most essays and Jay the fewest, but the ones written by Madison (particularly Federalist No. 10 and No. 51) eventually became the most famous and widely read.

    In the end, the Federalists won the ratification battle. Anti-Federalist contingents at state ratifying conventions were convinced to support the Constitution on the condition that amendments be made to it to secure certain liberties, a condition that would eventually lead to the creation of the Bill of Rights. One by one the states accepted the Constitution, until New Hampshire became the ninth state to ratify it in June of 1788. This ninth ratification satisfied the requirement in Article VII, and America’s second — and, so far, last — constitution went into effect a year later in 1789.

    A Practical Constitution

    The Founders who crafted the United States Constitution were among the most knowledgeable and clever political theorists of their era and perhaps any era. Yet the Constitution they created was not a purely theoretical document; it was molded and shaped by the political, economic, and social realities of the time. To succeed, the system of government produced by the Constitutional Convention needed support throughout the new nation. In other words, it needed to please various conflicting factions — large states and small states, Northern states and Southern states, Federalists and Anti-Federalists — all while maintaining its functionality.

    Notwithstanding the constraints under which it was produced, the Constitution has remained in effect to the present day. America has changed in many ways the Founders did not and could not predict, but it is still governed according to a plan first put to parchment in Philadelphia over 200 years ago. That plan has been amended 27 times since its ratification, but the underlying structure of American government it established — three branches, each with distinct powers and the ability to check the other two — is still intact.

    Americans tend to take a great deal of pride in their constitution. At times they exhibit a certain degree of reverence for it, exalting the delegates to the Constitutional Convention as almost mythological figures and using the words constitutional and unconstitutional as though they were synonyms for good and evil. Yet the Founders were mortals, constrained by political realities, and the 27 amendments testify to the fact that their handiwork was not perfect (even though Americans still disagree on whether all of those amendments were necessary or beneficial).

    One area where the Constitution has not aged well is on the topic of slavery. The Founders tiptoed delicately around the issue — the words slave and slavery did not appear anywhere in the original Constitution — and made compromises they felt were necessary to prevent Southern states from walking out of the Constitutional Convention and fracturing the young nation. Today, the idea of compromising on the issue of slavery in any way and for any reason strikes most people as morally reprehensible. Perhaps Northern delegates could have persuaded Southern delegates to accept terms less favorable to slavery. Or perhaps refusing to compromise would have split the Union from the very beginning, resulting in an independent South where slavery would have lasted much longer. There is no way to know for sure.

    Ultimately, the best approach to the Constitution is neither excessive deference nor rash revisionism. Constitutions sometimes need to change, and America’s is no exception. The fact that things have been done a certain way since 1789 is no guarantee that they should continue to be done the same way going forward. At the same time, constitutions are hard to change for a reason, and the durability of the Constitution should give us users pause before we clamor for amending it anew. Tinkering with intricate machines, though often justified, can lead to unpredictable consequences that may even be worse than the original problems. Every word in the Constitution was put there for a reason, and we should always endeavor to understand why the Constitution is the way it is before attempting to change it.


    This page titled 1.3: The Constitution is shared under a CC BY-NC 4.0 license and was authored, remixed, and/or curated by Benjamin R. Kantack (Tekakwitha Press) via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.

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