The Constitution
Simply put, the law of the land.
Background
• The first government of the United States was the Articles of
Confederation.
• The Articles set up a loose alliance of independent states, or, a
confederation.
• The Articles established a “firm league of friendship” among the
states.
• Each state kept its sovereignty, freedom, and independence, and
every right not expressly delegated to the United States.
• The United State first became a Confederation, or an alliance of
independent states.
• The Articles established a unicameral (one house) legislature where
each state had one vote.
• No executive or judicial branch was created.
Weaknesses in the Articles
• One vote for each state, regardless of size.
• Congress could not collect taxes or duties.
• Congress could not regulate foreign or interstate
commerce.
• There was no firm executive to enforce acts of
Congress.
• There was no national court system.
• Changes or amendments could only be made with the
consent of all states.
• A 9/13 majority was required to pass laws.
• The articles were only a “firm league of friendship”.
Actual Problems
• The states had many quarrels with one another, often
levying taxes on imported goods from neighboring
states. They also disputed boundaries, navigation of
rivers, etc.
• Each state printed their own money, often with little
backing, i.e. the money represented no gold or silver or
legitimate line of credit.
• Some states even made treaties with foreign
governments without consent of the National
Government.
• The National Government had no authority to stop any
of these problems.
Problems in Massachusetts
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In the mid-1780’s, economic conditions in Massachusetts worsened to a breaking
point.
Many small farmers in rural Massachusetts had struggled during the war. Often
times they had to borrow money on credit from local bankers and merchants, who
themselves had borrowed from bankers in Boston, who themselves had borrowed
from European banks.
When the war ended, the European banks demanded payment in hard currency,
or money that is established on the world market. This led the Boston bankers to
demand payment in hard currency, who demanded it from the local bankers and
merchants, who of course, demanded it from local farmers.
Similarly, tax payments were also demanded from these farmers by local
governments.
Debt and tax collectors obtained court orders for seizure of property.
Finally, many of the farmers had served in the Revolution, and were owed back pay
for their service from the state government, which they were not receiving.
Shay’s Rebellion
• After requests for the use of paper currency were ignored,
many farmers began taking direct action.
• In 1786 rebel farmers began taking over local courts,
repossessing seized property, and otherwise rebelling
against the state government.
• In January 1787, the rebels, led by veteran Daniel Shays,
attacked the federal armory in Springfield, Massachusetts,
where they were repulsed by state militia.
• The incident helped convince many influential figures
around the country (especially the elite, who feared more
rebellion from the lower classes), of the need for a
stronger federal government.
Calls for Change
• In 1786, Virginia and Maryland, who had been locked in bitter trade
disputes, decided to meet to resolve the issues.
• Initially held in Alexandria, Virginia, these sessions were eventually moved
to Mt. Vernon at George Washington’s invitation.
• These sessions were very successful, and encouraged Virginia and
Maryland to invite the other states to meet with them in Annapolis,
Maryland later that year.
• The joint meeting of all the states in Annapolis did not go so well, with
only representatives from 5 states showing up.
• The representatives decided to call for another meeting of all the states
the next year in Philadelphia.
• Eventually, perhaps influenced by the events of Shay’s Rebellion, the
Congress called for each state to send representatives to Philadelphia.
• Needless to say, the calls for change were led by large property owners,
merchants, money lenders, etc. because they had so much to lose if the
instability continued.
Constitutional Convention
• The meeting was supposed t begin on May 14th, but really began on May
25th, 1787, when enough representatives arrived, and lasted until
September 17th.
• There were 55 delegates that met, sent by each of the 13 states except for
Rhodes Island (the state was skeptical of a strong federal government).
• 39 members signed the document, with several leaving before it was
complete, and 3 refusing to sign the result.
• George Washington was the president of the convention.
• The members were among the leading men of their time, many who were
veterans of the Revolution, 39 who were members of Continental
Congress, the Congress of the Confederation, or both, and almost all were
wealthy and educated. Surprisingly, the average age was 42.
• These men are known as the Framers, because they “framed” the
Constitution.
Changing the Purpose
• Initially, the Convention was called simply to make
some revisions to the Articles of Confederation.
• It didn’t take very long for the delegates to agree that
what they were actually doing, was creating a new
government.
• On May 30th, a resolution was passed which indicated
that a national government needed to be established,
which would have a legislature, executive, and
judiciary.
• Because of the controversial nature of their task, the
delegate agreed to work in secret.
Virginia Plan
James Madison was one of the first delegates to arrive, and he began working
on what became known as the “Virginia Plan”, which called for:
1. A new government with three separate legislative, executive, and judicial
branches
2. A bicameral (2 house) legislature would be created. The lower house, the
House of Representatives, would be popularly elected in each state, and
the House of Representatives would then elect the members of the
upper house, the Senate.
3. Representation in both houses would be based on the population of the
state, or the amount of money the state gave to support the national
government.
4. Congress would have all of the powers it held in the Articles, and would
also have the power to solve all of the problems the states couldn’t
solve, and to veto any state law in conflict with national law.
5. Congress would choose a national executive and a national judiciary who
would form a council of revision, which could veto acts of Congress
6. The executive had authority to enforce and execute national laws, while
the judiciary would have official tribunals.
New Jersey Plan
The New Jersey Plan called for:
1. The Articles would still be the supreme law of the land.
2. Unicameral (1 house), legislature.
3. Congress would be able to regulate trade, collect taxes,
and impose tariffs.
4. Each state equally represented.
5. A federal executive of more than one person, chosen by
Congress, who could be removed by the majority of state
governors.
6. The federal judiciary would be a single supreme tribunal
appointed by the executive.
Connecticut Compromise
Conflict broke out between the state with large
populations who supported the Virginia Plan, and
states with small populations, who supported the
New Jersey Plan. The Connecticut delegation came
ups with a plan that called for:
1. Bicameral legislature.
2. Smaller Senate, each state would be
represented equally.
3. Membership in the House of Representatives
would be based on population.
Three-Fifths Compromise
Once membership in the House would be based on
population, the question of whether or not to count
slaves needed to be answered. The solution was the
3/5ths Compromise, which called for:
1. All free persons to be counted in the population.
2. “Three-Fifths of all other persons” would also be
counted.
3. The ration was also used in determining the
amount of money to be raised by a direct tax
from Congress.
The Commerce and Slave Trade
Compromise
Fearing that giving Congress the power to
regulate trade would give too much power to
Northern commercial interests, the Southern
states proposed the following compromise,
which was adopted:
1. Congress would be forbidden the power to
tax the export of goods from any state.
2. Congress would not be able to act on the
slave trade until 1808.
Ratification
• Article VII of the Constitution provides how
many ratifications were needed in order for
the Constitution to take effect.
“The Ratification of the Conventions of nine
States, shall be sufficient for the Establishment
of this Constitution between the States so
ratifying the Same”
-Article VII of the U.S. Constitution.
The Fight For Ratification
• The fight for ratification was a close one, and and
was hotly debated.
• Those in favor of ratification were called
Federalists. They were led by James Madison,
John Jay, and Alexander Hamilton, with strong
support from George Washington.
• Those opposed to ratification were called AntiFederalists. The most prominent of these men
were Patrick Henry, George Mason, George
Clinton, and Richard Henry Lee.
Federalist Arguments
The main points of the Federalists were:
1. That the Articles of Confederation were too weak.
2. That the new Constitution was needed, and that it properly created a
powerful central government.
3. That the Constitution takes careful measures to prevent the central
government from obtaining too much power.
4. That the checks and balances of the Constitution prevent any one branch
of government from abusing power.
5. That the powers and rights of the states are preserved through
Federalism, i.e. that the central government established by the
Constitution would only have the specific powers listed in the
Constitution itself, and that all other powers be vested in the states.
6. That a Bill of Rights was not needed, since the Constitution itself
prevented abuse of power by the government and because a Bill of
Rights might be construed as limiting peoples rights to only those
specifically mentioned.
Anti-Federalist Arguments
The main points of the Anti-Federalists were:
1. That the Constitution would give too much power to the
central government and eliminate any real power the
individual states had, and that the central government
could potentially use force to force the states to comply.
2. That the Constitution would give too much power to
aristocrats, i.e. the wealthy.
3. That the central government would not be able to attend
to all of the problems of so vast a territory.
4. That the “Necessary and Proper” clause of Article I of the
Constitution gave the Congress too much power.
5. That a Bill of Rights was not part of the Constitution.
6. That the President would have too much power.
Nine States Ratify
• Delaware became the first state to ratify the
Constitution, and did so unanimously.
• Other unanimous states were New Jersey and
Georgia.
• States with substantial majorities in favor
included Pennsylvania, Connecticut, Maryland,
and South Carolina.
• Massachusetts and New Hampshire were close
votes, with New Hampshire being the ninth state
to ratify.
The Big Fights
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When New Hampshire became the ninth state to ratify the Constitution, it should
have been enough to establish the new government.
Still, without the key states of Virginia and New York, the new government would
have little hope of survival.
In Virginia the vote was close, as Patrick Henry, Richard Henry Lee, and James
Monroe argued passionately against ratification. Only with the support of
Madison, Washington, and their reluctant partner Thomas Jefferson did ratification
win a narrow victory.
In New York the debate was very hot. Anti-Federalists had been publishing a series
of criticisms known as the Anti-Federalist Papers to gain an upper hand. To win
support in that state, Federalists Alexander Hamilton, John Jay, and James Madison
published a series of 85 essays and articles called the Federalist Papers. Eventually
ratification won a narrow victory there as well.
North Carolina initially voted against ratification, but later voted in favor after it
was agreed to add a Bill of Rights as the first ten amendments to the Constitution
immediately.
Rhodes Island was the last state to ratify, joining even after the government began,
again, because of the agreement to add a Bill of Rights.
Six Basic Principles
The Constitution is built around six basic
principles. These are:
1. Popular sovereignty
2. Limited Government
3. Separation of Powers
4. Checks and Balances
5. Judicial Review
6. Federalism
Popular Sovereignty
• The power of the government comes from the
people.
• In essence, the National Government draws its
power from the people have given the
government the power it has, through the
Constitution.
• We see this in the Constitution’s preamble, which
begins with the words “We the People of the
United States……”
• Each state has its own Constitution which also
gives the state governments their power.
Limited Government
• The principle of limited government holds that the
government ONLY has the power given to it by the
people in the Constitution.
• Essentially, government must obey the law, which is
the Constitution. This is referred to as
Constitutionalism.
• A key concept here is that government and its officers
are subject to the rule of law, not above it.
• The Constitution itself, and the amendments specify
what the government can do, and what it cannot do.
Separation of Powers
• The Constitution created three branches of government, each with
a specific power.
• The legislative power, or power to make laws, is held by the two
houses of Congress, the Senate and House of Representatives. This
is set out in Article I of the Constitution.
• The executive power, or the power to carry out, administer, and
enforce the laws, is held by the President. This is set out in Article II.
• The judicial power, or the power to interpret and apply laws in
cases is held by the Supreme Court and other inferior courts
created by the Congress. This is set out in Article III.
• The Framers believed that if the legislative, executive, and judicial
power were in the hands of one branch of government, as in a
Parliamentary government, this would lead to tyranny.
• Thus, the three branches were created to keep power as separated
as possible.
Checks and Balances
• Each branch of government is not entirely
separated, nor completely independent of the
others, but rather tied together in a complex
system of checks and balances.
• The idea is that the power of each branch is
subject to checks (restraints) placed on them by
the other branches.
• This system prevents any branch from gaining too
much power.
• The specific checks and balances can be seen on
the chart that follows.
Judicial Review
• Judicial Review is the power of the Supreme Court and other
Federal Courts to determine whether what government does is in
accord with the Constitution.
• More precisely, it is the power of the courts to determine the
constitutionality of a government action.
• This power is NOT specified in the Constitution in exact language,
but instead, the Supreme Court gave the power to itself, in the 1803
case of Marbury v. Madison.
• It is mostly clear that the Framers intended for this power to exist,
as can be seen in the Federalist Papers, specifically Federalist 51, in
which Madison refers to judicial power as an “auxiliary precaution”
against the possible domination of one branch of government. In
Federalist 78, Hamilton wrote that “Independent judges would
serve as an essential safeguard…”
Federalism
• Federalism is the concept of dividing the power
among a central government and several regional
governments.
• The Constitution sets out the specific powers,
roles, and duties of the central government, and
places limitations on these powers, leaving all the
other powers to the state and local governments.
• Federalism is specifically laid out in Article IV and
most especially in Article VI and 10th
Amendment.
How to amend the Constitution?
• The Framers were experienced enough, and
wise enough, to realize that times change, and
that future generations might need to change
the Constitution.
• To do so they produced Article V, which
creates a clear procedure for amending the
Constitution.
• To date, this has happened 27 times, the last
being in 1992.
First Method
• Proposed by a 2/3 vote by each house of
congress.
• It must be ratified by 3/4 of the state
legislatures. Today, that means 38 states out
of 50.
• 26 out of 27 amendments have been ratified
by this method.
Second Method
• Proposed by 2/3 vote in both houses of Congress.
• Ratified by popular conventions held in 3/4 of the
states.
• This method was chosen because it was felt that
it more accurately reflected the will of the
people, since they elected the representatives at
the convention strictly for that purpose.
• Only the 21st Amendment was ratified in this way.
Third Method
• Proposed by a national convention called by
Congress when requested by 2/3 of the states
legislatures, today 34.
• The amendment must then be ratified by 3/4
of the state legislatures, today 38.
• This method is available, but has never been
chosen.
Fourth Method
• Proposed by a national convention called by
Congress when requested by 2/3 of the states
legislatures, today 34.
• Ratified by popular conventions held in 3/4 of
the states, or 38.
• The Constitution itself was ratified in this way.
How to Amend the Constitution
Bill of Rights
• To get the Anti-Federalists to agree to the
Constitution, the Federalists had agreed to add a
Bill of Rights to the Constitution.
• In the first session of the First Congress, James
Madison proposed twelve amendments to the
Constitution.
• Twelve amendments* were proposed by
Congress, but only ten, what would become the
Bill Of Rights, were ratified by 3/4 of the states.
*The first one that was not ratified concerned Congressional appointment in
the House. The second one eventually became the 27th Amendment in 1992.
The First Amendment
• Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a redress
of grievances.
Second Amendment
• A well regulated Militia, being necessary to
the security of a free State, the right of the
people to keep and bear Arms, shall not be
infringed.
Third Amendment
• No Soldier shall, in time of peace be quartered
in any house, without the consent of the
Owner, nor in time of war, but in a manner to
be prescribed by law.
Fourth Amendment
• The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
Fifth Amendment
• No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation.
Sixth Amendment
• In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein
the crime shall have been committed, which
district shall have been previously ascertained by
law, and to be informed of the nature and cause
of the accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defence,
Seventh Amendment
• In suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise reexamined in any court of the United States,
than according to the rules of the common
law.
Eighth Amendment
• Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted
Ninth Amendment
• The enumeration in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people.
Tenth Amendment
• The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively,
or to the people