By Loren Miller

Constitution

A constitution is the fundamental law of the land-- it creates political institutions-- it assigns or divides powers in government-- it often provides certain guarantees to people-- it provides for amending itself-- it can be written (like the United States

Constitution) or unwritten (like the British)-- Before the French and American Revolutions, a constitution was conceived as something that evolved from a nation’s history or practice

An ideal constitution should be flexible, concise and dedicated to fundamental principles.

Constitution

A constitution is made by the people, and in democracies this means in a convention. That means that a constitution is influenced by the governmental experience and the social and economic backgrounds of those who attend the convention.

What type of people tend to benefit when a new constitution is written?

Nation Year the Current Constitution Was Written

United States 1789Netherlands 1814Argentina 1853Canada 1867Australia 1901Austria 1920Ireland 1937Japan 1947Italy 1948Germany 1949India 1950Great Britain No Written ConstitutionIsrael No Written ConstitutionNew Zealand No Written Constitution

Constitutionalism in America

The Constitutional Convention of 1787 had many antecedents:

-- The Magna Carta (1215): English lords, traditionally required to finance a king’s wars, forced King John to sign the

Magna Carta, a document guaranteeing their feudal rights and setting the precedent of a limited government and monarchy

-- The Mayflower Compact (1620): After the Pilgrims landed at Plymouth, they formed a colony based on the Mayflower Compact, thus setting a

precedent of a government established by contract among the governed

Constitutionalism in America

-- The Colonial Charters (1624-1732): The colonial charters that authorized settlement of the colonies in America were granted by royal action-- The Declaration of Independence (1776):

Members of the Continental Congress came to view a formal Declaration of

Independence as necessary to give legitimacy to their cause and establish the basis for a new nation

-- The Articles of Confederation (1781-1789): The national government was thought of

as an alliance of independent states, not as a government “of the people.”

Role of America in the British Empire

American colonists were theorizing about a federal government:

-- was the British Empire federal or unitary?-- what rights do the people in the Empire have?-- when a conflict arises, who is supreme?

Radicals – a distinct minority; the British played right into their hands by raising taxes and by over-reacting

Majority – we need England to protect us, but in local matters we have control

First Continental Congress

-- met in Philadelphia in 1774-- brought together irregular delegates from every colony except Georgia-- discuss the emergency over Great Britain and its

repressive measures-- seven weeks of discussion-- adopted a “declaration of rights”-- called for a second meeting to be held the following year

Carpenter Hall Benjamin Franklin

Second Continental Congress

-- met in Philadelphia in 1775-- presided over by John Hancock and included Benjamin Franklin, John Adams, Samuel Adams, and Richard Henry Lee (all radicals)-- forced to step into the breach because the war had

begun (the Battles of Lexington and Concord)-- conducted the functions of government, moving

from place to place, until 1781-- really just conducted the war, not the functions of

government

Declaration of Independence

A philosophical justification for independence-- primarily written by Thomas Jefferson and

heavily influenced by the writings of John Locke

-- a list of grievances against the King -- he has . . . . Declaration of Independence - Text Transcript

-- “self-evident truths”-- “all men are created equal . . . .”

1632-1704

Articles of Confederation

In the Second Continental Congress, William Henry Lee proposed the creation of a new government.

A committee, chaired by John Dickenson, drafted a plan which was approved in 1777.

This plan became the Articles of Confederation:-- state sovereignty-- concentration of powers in a unicameral

legislature which met annually; each state had one vote and 9 of 13 were needed to adopt laws

-- amendments required unanimous consent-- national government could adopt resolutions and

issue commands but had no means to enforce them

Articles of Confederation

Even before the Articles took effect, several leading statesmen were not pleased

-- Washington, Hamilton, Jay and Madison believed that the powers conferred on the national government were inadequate

Nationalists – revolutionary war officers, merchants, holders of certificates of debt

Localists – freeland farmers who felt that the central government was too far away from the

immediate problems of domestic life

Weaknesses of the Articles

No power to tax (relied on the states to forward taxes)

No power to regulate interstate commerce

Each state had their own currency

Could not protect western settlers from Indian attacks

There was civil disorder as debtors openly revolted against tax collectors and sheriffs attempting to repossess farms on behalf of creditors who held unpaid mortgages (Shays’ Rebellion)

The Road to the Constitutional Convention

Annapolis Convention (1786)-- called by Virginia to try to lower interstate

tariff barriers-- only five states sent delegates-- most of the delegates were nationalists and

they called for a new convention to meet the following year

-- the convention was to meet in Philadelphia to propose the revision of the Articles of Confederation

The Constitutional Convention (1787)

Who Was There?-- average age was 42-- ¾’s had served in the Confederation

Congress-- most had played a part in the Revolutionary

War-- lawyers predominated-- most held important public positions-- about half were college graduates

The Constitutional Convention (1787)

Who Wasn’t There?--Patrick Henry (he smelt a rat)-- John Hancock-- Richard Henry Lee-- Samuel Adams-- Thomas Paine-- Thomas Jefferson-- John Adams

Patrick Henry

John HancockThomas Paine

The Constitutional Convention (1787)

Convention sessions were held in the old brick State House in Philadelphia in the room directly above that in which the Declaration of Independence was signed.

Seventy-four delegates were appointed but only fifty-five ever attended. Most of the meetings were sparsely attended.

The only state not represented was Rhode Island

Washington was unanimously chosen to preside

Each state would receive one vote

Proceedings were to be kept secret; a secretary was appointed but Madison’s notes are the best record

The Constitutional Convention (1787)

Consensus:-- all were supporters of a republican form of

government-- all wanted a balanced (but limited) government-- most wanted property qualifications in order to

vote-- most wanted a bicameral legislature-- almost all wanted increased power to the national

government-- state constitutions and the Articles of Confederation focused too much on limiting government power, so this experience led to the creation of a strong national government

The Constitutional Convention (1787)

Compromises:-- Connecticut Compromise

-- Virginia Plan-- New Jersey Plan

-- Commerce and Slave Trade Compromise-- Congress could tax imports but not exports-- Congress could not pass laws to end the slave trade until 1808

-- Three-fifths Compromise-- for the purpose of taxation and representation, slaves would count as 3/5s of a person

Total Population: 1.8 million

Total Population: 1.6 million

Population in 1790

Connecticut 237,635 1.1

Delaware 59,096 15.0

Georgia 82,548 34.5

Maryland 319,728 32.2

Massachusetts 378,556 0.0

New Hampshire 141,899 0.1

New Jersey 184,139 6.2

New York 340,241 6.2

North Carolina 395,005 25.5

Pennsylvania 433,611 0.9

Rhode Island 69,112 1.4

South Carolina 249,073 43.0

Virginia 747,550 39.1

% Enslaved

The Constitutional Convention (1787)

The Limited Role of Religion:

-- Most of the delegates were Christians (except for a few Deists)

-- The review of notes on the debate at the convention reveals few references to religion or to God

-- The few references that were made do not suggest that the Founders attempted to base the Constitution on an explicitly Judeo-Christian belief system-- The Founders viewed religion as belonging to the private rather than the public sphere-- Their primary concern was to protect the individual’s religious beliefs from the government, not to base a government on a particular set of religious principles

Franklin’s Closing Plea

I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure that I shall never approve them. For having lived long, I have experienced many instances of being obliged by better information or fuller consideration to change opinions even on important subjects, which I once thought right, but found to be otherwise . . . . the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. In these sentiments, I agree to this Constitution with all its faults, if there are such; because I think a general government necessary for us.

Compare the actual signing of the document with the pictorial description . . . .

13 Walked out and didn’t sign

3 Abstained from signing

Articles of Confederation v. Constitution

Element Articles of Confederation Constitution

Selection of Members Appointed by state Representatives elected by the of Congress legislatures people; Senators appointed

by state legislatures

Voting in Congress One vote per state One vote per representative; One vote per senator

Source of Congressional States National Government Pay

Executive None President

Judiciary No federal court system Supreme Court + Congress

Body Authorized to settle Congress Supreme Courtdisputes between states

Power to coin money National government and states National Government only

Taxes Collected by the states; Collected and apportioned apportioned by Congress by Congress

The Struggle for Ratification

Article VII – the Constitution will take effect when ratified by nine states.

Because the Constitution placed many prohibitions on the powers of states, the Founders believed that special constitutional ratifying conventions would be more likely to approve the document than would state legislatures.

The Federalists called for ratifying conventions to be held as quickly as possible so that opposition could not get organized.

The Struggle for Ratification

The Federalist Papers were 85 essays written by Alexander Hamilton, James Madison and John Jay (Publius) and published in New York newspapers. They are considered to be classics in political theory.

The Anti-Federalist response (Montesuma or Philadelphiensis) claimed that the writers of the Constitution were aristocrats and that the Constitution would lead to aristocratic tyranny and an overburdening central government. They also demanded a bill of rights.

The Struggle for Ratification

Scarcely a feature of the plan escaped attack:-- Patrick Henry and John Adams took offense at any proposal looking

toward a centralization of authority-- Patrick Henry wrote “I look upon that paper as the most fatal plan that could

possibly be conceived to enslave a free people”-- Northerners v. Southerners-- agricultural interests v. industrial interests-- the absence of a Bill of Rights to protect

individual liberty

Articles of Confederation Constitution British Rule

The Struggle for Ratification

The promise of a Bill of Rights appeased Sam Adams and John Hancock.

Ratification in New Hampshire brought the total to nine. However, New York, Virginia, North Carolina and Rhode Island had not ratified.

The role of The Federalist Papers was instrumental in getting New York to ratify (30-27) and Washington was sworn in as president of eleven states.

Rhode Island did not ratify until a Bill of Rights was proposed and they were threatened consideration as a foreign country.

Final Vote for Ratification

STATE DATE OF RATIFICATION

VOTE IN CONVENTION

Delaware December 7, 1787 Unanimous (30-0)

Pennsylvania December 12, 1787 46-23

New Jersey December 18, 1787 Unanimous (38-0)

Georgia January 2, 1788 Unanimous (26-0)

Connecticut January 9, 1788 128-40

Massachusetts February 7, 1788 187-168

Maryland April 28, 1788 63-11

South Carolina May 23, 1788 149-73

New Hampshire June 21, 1788 57-47 (2 meetings)

Virginia June 25, 1788 89-79

New York July 25, 1788 30-27

North Carolina July 21, 1789 194-77

Rhode Island May 29, 1790 34-32Tough Fight Originally Refused

Amending the Constitution

Article V

The Constitution: Difficult to Amend

Since 1789, more than 11,000 amendments have been formally offered in Congress. Of these, Congress officially proposed only 33, and 27 of those were eventually ratified by the states.

Two of these, Prohibition and its repeal, cancel each other out, so that for all practical purposes, only 25 amendments have been added to the Constitution since 1791.

The Constitution: Difficult to Amend

Most failures were simply attempts to use the Constitution as an alternative to legislation for dealing with a specific public problem.

-- Child Labor Amendment (1924)-- Anti-Miscegenation Amendment (1912)-- Balanced Budget Amendment (numerous times)-- Every Vote Counts Amendment (2004)

-- Abolishes the Electoral College

The Constitution: Change via Interpretation

Executive Interpretation: derived from the concept of inherent powers

-- executive privilege: the “right” of the president to withhold information on matters of national sensitivity or personal privacy

Legislative Interpretation: every time Congress enacts legislation, it must interpret the Constitution

-- some legislation is so far reaching that they fundamentally alter the responsibilities and functions of government (e.g., Social Security Act)

Judicial Interpretation: the power of judicial review-- interpretation of “equal protection” and “due process of law”

Basic Principle: Presidential v. Parliamentary

Basic Difference: relation between the executive and the legislative branches

Presidential:-- independently elected chief executive-- a gulf between the executive and legislative branches-- executive serves a fixed term-- executive chooses the Cabinet with little legislative input -- Problem: if Congress is dominated by one party and the president

is of the other party

Parliamentary:-- executive comes from the legislature-- conflict between the legislative and executive branches is

not possible-- Cabinet (Ministry) is drawn from the legislature-- legislature’s function often is simply to accept and make

legitimate the action of the Cabinet-- Problem: when no party is able to capture a clear majority

Basic Principle: Separation of Powers

Montesquieu – Spirit of the Laws; check power with power by dividing authority

Separation of power has required the cooperation of all three branches of government to operate (Madisonian Model)

Checks and Balances

Basic Principle: Single Member Constituency

We have only one winner per election-- each state has two senators but they each run in

separate elections

This is responsible for the two-party system in the United States.