Birth of the U.S. Constitution

Dave RolandDirector of Litigation

January 27, 2012

The American Question:

Are human societies really capable of establishing good government through reflection and choice, or are we forever destined to have our governments determined by accident and force?- Federalist No. 1

The Colonies – Pre-Revolution

Articles of Confederation• New nation functioned as a strong

alliance of states, each of which retained “its sovereignty, freedom, and independence”. Article II

• National government consisted solely of a unicameral Congress – no executive or judicial branches.

Articles of Confederation• States were represented by up to seven

delegates, but each state only got one vote.

• Congress was tasked with:– Collective foreign policy and defense– Arbitrating disputes among the states– Facilitating interstate commerce– Legislating for the territories– Coining, printing, borrowing money– Was not empowered to tax the states

Articles of Confederation• Most actions required approval of nine

states

– Engaging in war– Entering into treaties and alliances– Coining or regulating the value of money– Borrowing money– Appropriating money– Raising military forces, appointing

commander-in-chief

Articles of Confederation• States under the Articles:

– Retained sovereignty over most matters– Appointed and controlled pay of

delegates– Legislatures could instruct delegations

how to vote– Delegates could be recalled at will

Articles of Confederation• States eventually began to demonstrate

disregard for Confederation Congress

– Ignored Congressional treaties—including the Treaty of Paris

– Waging war with Indians and building their own naval forces

– Failing to send delegates to Congress– Refusing to respond to Congressional

requests for funding

Shays’ Rebellion• After the Revolution, debt was a major

problem for individuals and governments alike

• Congress and the states started to print paper money, spurring raging inflation

• Lenders began to demand payment in hard currency

• Debtors pushed legislators to require the acceptance of paper money

Shays’ Rebellion• Some state governments caved, others

refused to violate lenders’ rights

• In August 1786, Daniel Shays rallied an army of hundreds in effort to prevent Massachusetts courts from enforcing judgments against debtors

• The rebellion was put down in February 1787, but the incident spurred calls for strengthening the Articles of Confederation

Constitutional Convention• Assembled in Philadelphia between May

27 and September 17, 1787

• Only authorized to propose amendments to the Articles of Confederation

• Proceedings were kept secret

• 70 delegates selected, only 55 attended – and only 39 signed the finished product

Tensions Underlying Convention

• What would be best governmental structure?

• Fear of tyranny v. Fear of disintigration

• Populous states v. Small states

• Slave states v. Free states

• Original states v. Prospective states

• Federal executive?

The Convention’s Results• Preamble• Article I – Legislative Branch• Article II – Executive Branch• Article III – Judicial Branch• Article IV – The States• Article V – Amendments• Article VI – Debt, Supremacy, Oaths• Article VII – Ratification

Legislative Branch• House of Representatives

– Popularly elected– Two-year terms– Seats apportioned according to population

• Senate– Chose by state legislatures– Six-year terms– Two senators for each state

Legislative Branch• Legislation

– Majority vote in each house required– Subject to Presidential veto, but two-thirds of

each house can override veto

• General powers– Taxation to pay debts and provide for common

defense and general welfare– Borrow money– Regulate commerce with foreign nations, among

the several states, and with Indian tribes

Legislative Branch• General powers (cont’d)

– Establish uniform rule of naturalization– Establish uniform bankruptcy laws– Coin money and regulate its value– Fix standard weights and measures– Provide for punishment for counterfeiting– Establish post office and post roads– Create copyright and patent protections

Legislative Branch• General powers (cont’d)

– Create courts subordinate to the Supreme Court– Govern maritime law– Declare war, raise and support armies, provide

and maintain a Navy– Provide for calling out the militia to execute

laws, suppress insurrections and repel invasions– Govern the District of Columbia

Legislative Branch• General powers (cont’d)

– Dispose of and make all needful rules and regulations for territories of the United States

– Make all laws “necessary and proper” to accomplish the above tasks

Legislative Branch• Limitations on Congress

– Slave trade could not be prohibited until 1808

– May only suspend habeas corpus “in cases of rebellion or invasion”

– No bills of attainder or ex post facto laws– Taxes must be in proportion to states’

population, not based on relative wealth or the value of property

Legislative Branch• Limitations on Congress

– Cannot tax exports from states– Cannot establish favoritism by directing

or restricting commerce to the ports of one state or another

– Cannot grant titles of nobility (and no government official could accept such titles conferred by another nation)

Executive Branch• President

– Chief Executive– Chosen by electors selected specially for the purpose– Four-year terms

• Responsibilities

– Commander-in-Chief– Power to grant reprieves or pardons– Make treaties– Appoint ambassadors, judges, other officials

Executive Branch• Responsibilities (cont’d)

– Give Congress report on state of the union

– Receive ambassadors and other public ministers from other nations

– See to the faithful execution of the laws– Commission officers of the United

States

Executive Branch• Vice-President

– Second-highest vote-getter in presidential election

– Four-year terms– President of the Senate– Assumes presidency if the President

dies, resigns, or becomes incapacitated

Judicial Branch

• Supreme Court

– Justices appointed by President

– Life tenure (during good behavior)

• Inferior courts to be established by Congress

Judicial Branch• Oversee all cases:

– In law and equity arising under the constitution, laws, and treaties of the U.S.

– Involving ambassadors and other public ministers

– Of admiralty and maritime jurisdiction– In which the U.S. is a party– Between two or more states– Between a state and a citizen of another

state

Judicial Branch• Oversee all cases:

– Between citizens of different states– Between citizens of the same state claiming lands under

grants of different states– Between a state, or the citizens thereof, and foreign

states, citizens, or subjects

• Requirements:

– Criminal cases to be tried by jury in state where crime committed

– Treason defined and prosecution limited

The States• Obligations:

– Must give full faith and credit to public acts, records, and judicial proceedings of other states

– Citizens of each state are entitled to privileges and immunities of citizens in the several states

– States must extradite fugitives charged with felony back to state with jurisdiction over crime

– States must return runaway slaves to owners

The States• Limitations:

– Cannot enter into treaty, alliance or confederation

– Cannot coin money or issue bills of credit– Cannot establish anything as legal tender

except gold and silver coin– Cannot pass bills of attainder, ex post

facto laws, or laws impairing the obligation of contract

The States• Limitations:

– Cannot tax imports or exports beyond what is necessary for administrative costs

– Cannot “keep troops or ships of war in time of peace”

– Cannot enter into any compact with another state or with foreign powers or engage in war, unless actually invaded

The States• Requirements to become a state:

– Cannot be formed from territory of existing state, nor from the junction of two or more states or parts of states, unless with the consent of the legislatures of the states involved and Congress

– Must provide a republican form of government

Amendments• Methods of amending the Constitution

– Two-thirds of each house of Congress could approve an amendment and send it to states for ratification

– Two-thirds of state legislatures could demand a convention to consider new amendments

– Amendments effective when three-fourths of the states ratify them

– No amendment can deprive a state of its Senate seats

Debts, Supremacy, Oaths• U.S. government will assume all debts of

the Confederation Congress

• Constitution, laws, and treaties of the U.S. are supreme law of the land

• Federal and state officials must take oath pledging to support Constitution

• No religious tests permitted

Ratification• Nine states must agree to be

bound by the Constitution before it would become effective

• Constitution would only be binding on states that ratified it

Unanswered Questions• What role (if any) should political parties

play in the new system?

• Where states’ interests conflict with federal government, who wins?

• To what extent do states retain or sacrifice sovereignty?

• What about slavery?

National Debate over Ratification

• Choosing Sides: Federalists and Anti-Federalists

– “Publius”—Alexander Hamilton, James Madison, and John Jay

– “Cato”—New York Governor George Clinton

– “Brutus”—Justice Robert Yates– George Mason– Patrick Henry

National Debate over Ratification

• Major arguments

– What is the primary goal of government?– Is stronger central government

necessary?– Can stronger central government be

trusted?– Does geography render a free American

republic impractical?

The States Decide• Delaware, December 7, 1787 (30-0)

• Pennsylvania, December 12, 1787 (46-23)

• New Jersey, December 18, 1787 (39-0)

• Georgia, January 2, 1788 (26-0)

• Connecticut, January 9, 1788 (128-40)

• Massachusetts, February 6, 1788 (187-166; demanded amendments)

• Maryland, April 26, 1788 (63-11)

The States Decide• South Carolina, May 23, 1788 (149-73)

• New Hampshire, June 21, 1788 (57-47; demanded amendments)

• Virginia, June 25, 1788 (89-79; demanded amendments)

• New York, July 26, 1788 (30-27; demanded amendments)

• North Carolina, November 21, 1789 (195-77; previously voted down ratification 184-83)

• Rhode Island, May 29, 1790 (34-32; previously voted down ratification 2,708-237)