The Constitution of the United States of America
Created | Updated Jan 12, 2012
The US Constitution is the physical blueprint of the first true democracy of the 'New World'. It is the first true 'social contract' between the government and the governed, the final fulfilment of the philosophies of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Its evolution was a long process, involving many experiments in trial-and-error.
The concept of a written constitution came first from Britain. The idea began with the Magna Carta, and as other documents were produced by Parliament which became a legal basis for the function of the government, these various documents, coupled with various judicial precepts, came to be known as the British Constitution. However, since the government was loosely based on such a motley collection of documents, there was ample room for interpretation. It was this looseness of interpretation that would allow the British and their American colonies to pursue incompatible political paths, and yet justify them under the same constitution.
The first single-document constitutions came, ironically, from the hand of the crown. The colonial charters of the various American colonies grew to encompass a means of government in those colonies, and those charters were approved by the king. There were as many variations on the colonial charter as there were colonies, but for the most part, they consisted of a system of government composed of three branches: legislative, executive, and judicial. The legislative branch was elected by the colonies, but the governors and judges were appointed by the king. More often than not, governors and judges were chosen from Britain, and sent to the colonies to the people they governed, whereas the legislative bodies were chosen from among the locals. This would be an important point later on.
Then, as revolution began, and the colonies began to consider self-government, John Adams sparked a flurry of experimentation in written constitutions. In May 1775, he introduced a resolution to the Second Continental Congress to have the colonies begin rewriting their constitutions, specifically to remove the references to the crown. After a year of passionate argument on the part of Adams, that resolution was finally passed. John Adams further contributed to the cause when he wrote Thoughts on Government at about that same time. It was largely a response to Thomas Paine's Common Sense, specifically the part that ridiculed the concept of checks and balances. Adams firmly believed in checks and balances as necessary to personal freedom.
As the constitutions were rewritten, Adams, who had gained much respect for Thoughts on Government, was consulted for input into several of the state constitutions. Some states, like Rhode Island, simply revised their existing colonial charters to remove all references to the King or Great Britain. Most of the others radically redesigned their system of government. These fell into two types, best characterised by those of these two states:
Virginia - The Virginians, like many others, had grown intensely suspicious of executive and judicial power while the British had held those posts. The legislative, filled with locals, had been their lone supporter. The Virginians therefore wrote a constitution which limited the governor to little more than a puppet. Indeed, when Thomas Jefferson, as governor of Virginia, attempted to raise a militia in 1778, the House of Burgesses not only voted him down soundly, but made some rather insulting inquiries into his intentions. The Virginians were so suspicious of a strong executive that they accused the author of the Declaration of Independence of aiming to replace the monarchy with himself.
Massachusetts - John Adams was heavily involved in the process, but this was the last one to be written. It involved a well-balanced system of checks and balances. The exceptional thing about this one wasn't so much what it contained (which turned out to be much like the New York constitution, which is often held up as another shining example) as to how it was produced. A convention was called to draft the document. Then, it was sent to the various town halls for examination, debate, vote, and amendment. The constitutional convention then examined the merits of these changes, revised the document, and sent it back out again. It thus stands out particularly as a government very much 'by the people'.
Nationally, the government of the US functioned through the early years of the Revolution without a written form of government, but through tacit agreement in the Second Continental Congress. The Congress made up the whole of the government, and it took very little time for its shortcomings to become apparent. While the delegates argued and deliberated, George Washington forwarded them ever bleaker assessments of the state of his army, imploring them to provide more provisions, more equipment, and more money. But his passionate letters could not motivate a government which did not work.
The first form of written national government came about through the Articles of Confederation, in 1781. This document really did nothing more than formalise the Second Continental Congress, as it continued to do business in much the same way. It had absolutely no power to compel a state to do anything, as the states had full autonomy. Rather, the Confederation sought to broker deals for weapons, munitions, supplies, and troops among the various states to be used for the common good. The problem was, in many instances, the states simply did not meet their obligations, and there was no authority that could bring them to task. Coupled with the massive inflation of their newly-created dollar, the Articles of Confederation failed utterly to provision the Continental Army. Only through the determination of its leadership and the generosity of France did the army manage to stay together long enough to see the war to completion.
With the war over, it was time to consider a permanent form of national government. The Constitutional Convention was called to order in 1787. It was without the finest minds in American political thought, as Thomas Jefferson and John Adams were abroad on diplomatic missions. George Washington was reluctantly but unanimously elected to be the Convention's president. The Convention also lacked a delegation from the state of Rhode Island*. The Convention followed John Adams' model in Massachusetts. It would put together a constitution, then forward that to the several states for ratification.
The discussion then turned to the failings of the first forms of government, the Second Continental Congress and the Articles of Confederation. The fledgling country was still in grave danger from abroad, most notably from Britain, and so the government had to be powerful enough to maintain an army. Moreover, interstate commerce was a concern for all, and it was believed that the national government must be able to regulate this if it were going to work at all. In short order, the discussions became about the rights of the sovereign states versus the needs for a strong central government.
The first plan of government forwarded was the Virginia Plan, delivered by Virginia delegate Edmund Randolph. It was really the brainchild of fellow Virginian James Madison, who had been writing about such a form of government for years. It proposed a three-branch system (judicial, legislative, and executive) and a system of checks and balances. This government would have veto power over state laws, and be so powerful as to create, in Randolph's words, a strong consolidated union in which the idea of states should be nearly annihilated'.
Many in the country feared such a strong central government as an enemy to personal liberty, and so it took very little time for the response, which was known as the New Jersey Plan. New Jersey delegate William Paterson proposed that they amend the Articles of Confederation to give Congress the ability to regulate commerce and raise revenues with greater ease. The New Jersey Plan was shortly rejected, and the convention moved on to the business of creating a brand new government.
Alexander Hamilton then suggested that the US was destined to replace one monarch for another. His proposal was that they devise a system of government very much akin to the one they had just rebelled from, and suggestions were to offer some distant cousin of King George III the throne of America. But Americans had gotten too comfortable with the absence of titles and nobility, and were unwilling to return to them. Also, many said that a return to that same sort of government would, in effect, nullify the rebellion they had fought so desperately to complete. This proposal was rather quickly dismissed.
The convention began to work out the particulars of the Virginia Plan, with stiff debate raging over almost everything. The foremost obstacle was a need to balance the needs of the small states with those of the larger and more populous ones, who feared that their votes would be nullified, and that New York, Pennsylvania, and Virginia would control the federal government all by themselves. The small states lost the first battle, as population was chosen as the basis for representation in the House of Representatives, the lower legislative branch. The vote for equal representation in the Senate was deadlocked at 6-6. Oliver Ellsworth offered the 'Great Compromise' to break the deadlock. The Southern states had been arguing that their black slaves should be counted when determining representation by population, but the other states were unwilling yield, since the slaves were not citizens, had no rights, and could not vote. Ellsworth proposed that if the slaves could be counted as 3/5 of a person for the purpose of representation in the lower house, the Southern states would accept a Senate based on equal representation for all states. This proposal, received after several weeks of heated debate without progress, was approved in order to keep the convention from breaking down completely. With this resolved at long last, a Committee of Detail was appointed to draft the new Constitution, and the rest of the members voted themselves a ten-day vacation.
When they returned, the spirit of compromise had abandoned them. Two issues exploded. The Southern states, far less populous than the North, feared that their control of Congress would compromise Southern commerce. The massive exports of the South could be severely damaged by an export tax on cotton, tobacco, rice, etc. This issue was tied to the next explosive issue: slavery. Many delegates in the North supported eliminating the practice altogether, while Southern representatives argued that it was vital to their economy. The issue was so divisive that it jeopardised the entire convention. George Mason of Virginia struck a deal with the New England states in order to save the convention; in exchange for support for the slave trade for another 20 years, the South would allow Congress to pass navigation laws with a simple majority. This was a terrible blow to Southern economic interests, as well as a crippling blow to the abolitionists.
The delegates were growing increasingly unhappy with the proceedings. Samuel Hopkins of Connecticut lamented the permission of slavery,
How does it appear... that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorise them to enslave their fellow men.
George Mason said he 'would sooner chop off my right hand than put it to the Constitution as it now stands'.
He argued that a bill of rights was missing from the Constitution, thus leaving the government as a powerful entity that could overrun personal liberty.
With most of the major issues dealt with, there remained the method of electing the president. Large states argued for direct election, and small states recommended election by the state governors. Other proposals were for election by state legislatures, or the national legislature. After a series of debate and compromise, the result was the curious electoral college system. The large states received a proportional number of delegates based on population, and the small states were assured that their votes would not be rendered meaningless by the sheer volume of popular votes from the other states. State legislatures would choose the delegates, and the House of Representatives would choose the president if the electoral college failed to resolve the issue. George Mason predicted that the House would choose the president 19 times out of 20.
With these touchy issues resolved, exhaustion revived the spirit of compromise, and the debates wrapped up in short order. A Committee of Style and Arrangement was appointed, with Governor Morris of Pennsylvania as its chief architect. The convention then dealt with each article individually, and, although there were several close votes, the Constitution was approved. As the convention signed the document, Benjamin Franklin called for unity, saying:
I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats.
Pennsylvania was the first state to call a convention for ratification, and it quickly gained national attention. The debates raged hot and long, pitting the Federalists, who favoured the government outlined in the Constitution, against the anti-Federalists. The Pennsylvania state assembly was dominated by Federalists. The anti-Federalists among them chose to stay at home on the day they were to call a convention to discuss ratification of the Constitution. The assembly lacked a quorum, and could not call a convention. In an example of fine participatory democracy, a mob broke into the homes of two anti-Federalist assemblymen, dragged them to the State House, and forced them to remain for the vote.
Anti-Federalist Samuel Bryan began publishing his 'Centinel' articles in the Philadelphia newspaper Independent Gazetteer. He attacked the Constitution on several fronts: its lack of a bill of rights, the usurpation of state authority, and the sweeping power of the national government, which threatened to create a state not unlike that which they had so recently overthrown. The Pennsylvania convention was not swayed, as it approved the Constitution, by a vote of 46-23.
A series of essays by 'Cato' attacked the Constitution in New York. In response, Alexander Hamilton, John Jay, and James Madison began work on the Federalist Papers, a series of 85 essays, mostly written by Hamilton, that exposed the weaknesses in the Articles of Confederation. Their well-organized, concerted effort was poorly combated by the anti-Federalists, who were unorganized and regional in their scope. Charges by the anti-Federalists ranged from legitimate concerns (lack of a bill of rights, direct taxation, loss of state sovereignty) to the ridiculous, suggesting that pagans and deists would control the government, the pope could be elected president, or that horrible tortures could be executed by the government.
By 9 January, 1788, five of the nine states necessary to ratify the Constitution had done so. However, ratification was still in heavy doubt, especially in pivotal states New York, Massachusetts, and Virginia. On 6 February, with the local Federalists agreeing to recommend a series of amendments to the Constitution, amounting to a bill of rights, the Massachusetts committee ratified the Constitution 187-168. Six other states approved the Constitution with similar recommendations. The New York and Virginia ratifications had come with such recommendations. The extremely close votes in both states hinged on the promise of such amendments.
Support for a bill of rights became ever more vocal, with prominent Federalists John Madison and Thomas Jefferson adding their voices to influential anti-Federalists like Patrick Henry. Madison's support was critical, as he worked tirelessly in the first Congress to pass 17 amendments to the Constitution through the House of Representatives. The Senate trimmed them down to 12, and President George Washington signed them and forwarded them to the states for ratification. The ten amendments approved by the necessary 2/3 majority of the state legislatures became known to all Americans as the 'Bill of Rights'. Except for minor modifications made by future generations, the business of creating the government of the United States was completed.