Toward a
Constitution
Chapter 2
Introduction
•The American Revolution led not to
general chaos but to a remarkably
orderly process of constitution-making.
•From the 1760s through the 1780s,
there occurred a prolonged debate over
the fundamental issues of government.
“The Critical Period”
(1781-1787)
• The years the U.S. operated under the Articles
of Confederation
• A fear of centralized power dominated the
period
• Characteristics of state governments:
• weak governors
• weak judiciary
• strong legislature
• written constitutions and guaranteed rights
The Articles of Confederation
• A highly decentralized governmental system in
which the national government derives limited
authority from the states rather than directly from
citizens.
• No executive
• No judiciary
• Congress had a multitude of responsibilities but
little authority to carry them out
• 13 independent state republics under a nearly
powerless national government.
Successes of the Confederation
•The Temptations of
the West
•Congress could have
an independent income
with the sale of land.
•Western land
cessions, 1781-1802
•Congress had decided
to treat as equal states
rather than colonies.
The Northwest Territory
•Land Ordinance of 1785
• A plan of surveys and
sales.
•Rectangular pattern on
much of the nation.
•Northwest Ordinance of
1787
•Provided a guideline to
achieve statehood.
•Excluded slavery from the
Northwest.
Problems for the Confederation
• Wartime economic disruption
• Public and private debt
• Postwar inflation (currency shortage)
• Trade barriers at home and abroad
• U.S. had not gained their economic
independence
• Popular Uprisings
• Shay’s Rebellion (1,200 disgruntled farmers who
attacked the federal arsenal in Mass. seeking debt and
tax relief and a flexible monetary policy)
• Major laws required unanimous agreement
From Confederation to a
New Constitution
• Many began demanding revisions to the Articles
of Confederation.
• On February 21, 1787, the Continental Congress
resolved that:
• ...it is expedient that on the second Monday in
May next a Convention of delegates who shall
have been appointed by the several States be held
at Philadelphia for the sole and express purpose
of revising the Articles of Confederation...
The Constitutional Convention
• The original states, except Rhode Island, collectively
appointed 70 individuals to the Constitutional
Convention, but a number did not accept or could not
attend.
• Those who did not attend included Richard Henry
Lee, Patrick Henry, Thomas Jefferson, John Adams,
Samuel Adams and, John Hancock.
• In all, 55 delegates attended the Constitutional
Convention sessions, but only 39 actually signed the
Constitution.
• http://www.archives.gov/exhibit_hall/charters_of_
freedom/constitution/founding_fathers.html
Drafting a New Constitution
•Constitutional Convention met in
Philadelphia in May of 1787
•The delegates were able to draw from
their Revolutionary War experience.
•George Washington was elected to
preside over the convention.
•James Madison took a seat up front and
began recording the debates that would
occur.
Assembly Room in Independence Hall, Philadelphia,
site of the signing of the Constitution in 1787.
Getting Down to Business
•Most of the delegates at Philadelphia
thought that they would resolve
commercial conflicts among themselves or
amend the Articles of Confederation.
•A few, however, were planning (and
devising a strategy) to scrap the Articles
and start over.
•On the first day of substantive business
James Madison and his nationalist
colleagues sprang their surprise – their
blueprint for a new constitution.
The Virginia Plan
• Shifted focus of deliberation from patching up
the confederation to considering what was
required to create a national union.
• Its centerpiece was a bicameral legislature.
• Members of the lower chamber apportioned
among the states by population and directly
elected.
• Lower chamber would elect members of the
upper chamber from lists generated by the state
legislatures.
The Virginia Plan
•Also stipulated that the national
government could make whatever laws it
deemed appropriate and veto any state
laws it regarded as unfit.
•If a state failed to fulfill its legal
obligation, the national government could
use military force against it.
The Virginia Plan
• Many saw this proposed legislature as
too powerful.
• Opposition grew toward the Virginia
plan from two directions:
• Less populous state. Why?
• States’ rights delegates. Why?
The New Jersey Plan
•The groups that disagreed with
Madison’s proposal coalesced around an
alternative proposed by New Jersey
delegate William Paterson in response to
the Virginia Plan.
•It kept the national legislature as it
existed under the Articles – each state
had equal status regardless of
population.
The New Jersey Plan
•However it did attempt to fix the worst problems
of the Articles by giving Congress the authority to
levy taxes and to enforce compliance by the state
with their obligations
•Given its quick creation, it had its own faults: it
failed to propose the organization of the
executive and judiciary.
•Debate continued, however, as neither side was
happy with the options given by their opponents
for the composition of Congress.
The Great Compromise
Fashioning the National Legislature
• A committee was appointed to come up with
a solution to the stalemate.
• Each side got one of the two legislative
chambers fashioned to its liking.
• The upper chamber (Senate) would be composed
of two delegates sent from each state legislature
who would serve a 6 year term.
• Madison’s population-based, elective legislature
became the House of Representatives.
• The unanimous agreement rule was replaced
by a rule allowing a majority of the
membership to pass legislation.
The Great Compromise
The Necessary and Proper Clause
• In addition to specifying a broad list of
enumerated or expressed powers, the
committee proposed a clause that
authorized Congress to “make all Laws
which shall be necessary and proper for
carrying into Execution the foregoing
Powers, and all other Powers vested by
the Constitution in the Government of
the United States….”
The Great Compromise
Madison and Checks and Balances
• Given the compromise, Madison
became interested in a genuine
separation of powers between the
branches with each side exercising
checks and balances over the others.
• Played a significant role in Madison’s
formulation of the executive and
judiciary as independent institutions.
Designing the Executive
• Preferences ranged from Hamilton’s executive
“elected for life” at one end and the existing
model of state governors who had been given
very limited powers.
• At the same time, most agreed that the nation’s
first executive would be George Washington.
• There was much that had to be debated- in
particular, how would the executive be selected.
• A compromise led to the convoluted concept of
the electoral college.
The Electoral College
•The electoral college mixes state, congressional, and
popular participation in the election process.
•Each state is awarded as many electors as it has
members of the House and Senate.
•The Constitution left it to the states to decide how
electors are selected, but the Framers generally
expected that the states would rely on statewide
elections.
•If any candidate fails to receive an absolute majority in
the electoral college, the election is thrown into the
House of Representatives. Vote by state delegations.
An Independent Executive
• Madison and Hamilton largely
succeeded in fashioning an independent
executive by:
• Giving the president the ability to veto
legislation.
• By requiring a supermajority of each house
to override a presidential veto.
• But the Framers also checked the
executive’s power in numerous ways.
• See previous chart.
Designing the Judiciary
• The convention spent comparatively little time
designing the new federal judiciary.
• They did debate over two questions:
• Who would appoint Supreme Court justices?
• And should a network of lower federal courts be
created or should state courts handle all cases
until they reach the federal court?
• The extent of the Court’s authority to
overturn federal laws and executive actions
as unconstitutional – the concept of judicial
review – was not resolved at this point.
The Issue of Slavery
• Slavery was not absent from the debates. It was
present at several important junctures.
• One critical point was during the creation of the
national legislature.
• Southern states wanted to count slaves as part of
the population thus giving them more
representatives in the House. Yet these “citizens”
had no rights in that state.
• After much debate, the southern states were
allowed to count a slave as three-fifths of a
person.
• A ban on regulation of slavery until 1808.
Amending the Constitution
•An amendment can be proposed either by:
•A two-thirds vote of both houses of Congress.
•Or by an “application” from two-thirds of the
states.
•And an amendment can be enacted when:
•Three-fourths of the states (through their
legislatures or special conventions) accepts the
amendment.
The Fight for Ratification
• “The Ratification of the Conventions of
nine States, shall be sufficient for the
Establishment of the Constitution between
the States so ratifying the Same.”
• This statement did two important things:
• It removed the unanimous assent rule of the
Articles of Confederation.
• It withdrew authority from the state
legislatures, which might have misgivings
about surrendering autonomy.
The Federalist and
Antifederalist Debate
• Antifederalists argued against this new form
of government. (states’ rights)
• Argued that only local democracy could
approach true democracy.
• Stronger national government must come
with safeguards against tyranny.
• For this reason, the Bill of Rights was
included almost immediately after ratification.
The Federalist Argument
(the rhetoric of nationalism)
• The Federalist Papers
• 85 essays (written by Hamilton,
Madison, and Jay), which were directed
primarily at New York, which had not
yet voted in 1788 although by this point
the Constitution was technically ratified.
• Provided insight into the meaning of the
Constitution.
Ratification
•New Hampshire was the ninth to ratify
•June 21, 1788
•Rhode Island held out until 1790