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
Netherlands
Argentina
Canada
Australia
Austria
Ireland
Japan
Italy
Germany
India
Great Britain
Israel
New Zealand
1789
1814
1853
1867
1901
1920
1937
1947
1948
1949
1950
No Written Constitution
No Written Constitution
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 overreacting
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 Hancock
Thomas 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)
Population in 1790 (in thousands)
Virginia
Pennsylvania
Massachusetts
Compromises:
-- Connecticut Compromise
-- Virginia Plan
-- New Jersey Plan
Total Population:
1.8 million
North Carolina
New York
Maryland
Connecticut
South Carolina
Total Population:
1.6 million
New Jersey
New Hampshire
Georgia
Rhode Island
Delaware
0
100
200
300
400
500
-- 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
600
Population in 1790
% Enslaved
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
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
of Congress
Appointed by state
legislatures
Representatives elected by the
people; Senators appointed
by state legislatures
Voting in Congress
One vote per state
One vote per representative;
One vote per senator
Source of Congressional
Pay
Executive
Judiciary
Body Authorized to settle
disputes between states
Power to coin money
Taxes
States
National Government
None
President
No federal court system
Congress
Supreme Court + Congress
Supreme Court
National government and states
National Government only
Collected by the states;
apportioned by Congress
Collected and apportioned
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
Freedom
Constitution
British Rule
Order
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
34-32
Tough 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
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.