Constitution

Constitution. The Constitution of 1787 is the basic governing document of the United States.

Intellectual Antecedents.

The origins of the Constitution extend back centuries into Judeo‐Christian culture, drawing upon the Bible (the Hebrew scriptures far more than the Christian); the political culture of the classical world, particularly the five‐hundred‐year history of the Roman republic; natural law and natural rights doctrines formulated by ancient, medieval, and early modern writers; the rhetoric and philosophy of the Renaissance, Reformation, and Enlightenment; social contract theory; and English constitutional history, including common law, Whig libertarian tradition, and the formal enunciations in the Magna Carta (1215), Petition of Right (1628), Habeas Corpus Act (1679), and Bill of Rights (1689). Writers cited during the debate over the ratification of the Constitution included first and foremost the Baron de Montesquieu, followed by Sir William Blackstone, John Locke, Sir Edward Coke, Jean Louis DeLolme, James Harrington, Thomas Hobbes, David Hume, Richard Price, and Algernon Sidney. Frequently mentioned ancient writers included Aesop, Horace, Polybius, Socrates, Tacitus, and Virgil. The three most widely cited literary writers were Alexander Pope, William Shakespeare, and Jonathan Swift.

Historical Background.

Despite the impressive breadth of these antecedents, the founders drew most heavily on their own experiences in America as colonists, rebels, and constitution‐writers. Beginning with their colonial charters, the New World settlers had embodied their English common‐law rights in over two hundred written documents. Only on rare occasions in England, and after repeated abuses by the monarch, had rights been asserted in writing. In America, however, as a matter of course, colonists wrote charters and sometimes adopted statements of rights based on English common law. In some colonies these guarantees were offered willingly by the crown or benevolent founders or proprietors as in Rhode Island, Pennsylvania, New Jersey, and the Carolinas. In others, rights had to be wrested from arbitrary or incompetent governors who tried to preserve the prerogatives of the crown or proprietors.

During the Colonial Era, governments developed in each colony with a governor, judiciary, and (usually) bicameral legislature. Governors controlled appointments to the judiciary and to their council, which often served as the upper house of the legislature. Largely left to develop on their own before 1764, colonial governments had come to an accommodation in which assemblies, the lower houses of the legislatures, developed a degree of self‐government through their control over all tax measures and appropriations, including the salaries of governors and the rest of the civil list. Assemblies effectively used this fiscal authority as a check on their governors.

After the end of the Seven Years' War in 1763, Parliament pursued a new activist imperial policy toward its American colonies. One tax after another provoked vehement responses from colonial dissenters. When Parliament repealed the Stamp Act in response to colonial protests, the Declaratory Act (1766) unequivocally asserted Parliament's undisputed authority to pass any legislation for the colonies: self‐government was a grant, not a right. The colonists never accepted this absolutist position, and after a decade of friction, Americans declared their independence and embarked on an unprecedented period of constitution writing at both the state and national levels.

Between 1776 and 1780, Americans drafted and adopted state constitutions that, with few exceptions, created similar governments. Structurally the new state governments resembled their colonial predecessors with governors, bicameral legislatures (except for Pennsylvania, Georgia, and the self‐proclaimed republic of Vermont), and judiciaries. Despite the commitment to the concept of separation of powers, real political power shifted almost exclusively to the assemblies. Assemblymen were elected annually. Governors, often elected by the legislatures for one‐year terms, were denied the veto, and senates (the new upper houses) were not allowed to amend money bills. Most appointments, including the judiciary, were made annually by the assemblies. Judicial review of legislative acts hardly existed.

At the national level, the Continental Congress, after more than a year of deliberation, submitted a draft constitution, the Articles of Confederation, to the state legislatures for the requisite unanimous ratification. The Articles created a unicameral Congress in which each state had one vote, and delegates to Congress could serve only three years in any six‐year period. Congress could act only on the states, not directly on the people. The Articles did not provide for a separate executive or judiciary, and according to Article II, the states retained their “sovereignty, freedom and independence” and Congress possessed only those powers “expressly delegated” to it. Lacking the power to regulate foreign or interstate commerce or levy taxes, Congress raised revenue by asking the states for money. Most important matters needed the approval of nine states in Congress. Amendments to the Articles required the approval of Congress and the unanimous ratification of the state legislatures.

Repeated efforts to strengthen Congress by amending the Articles or by persuading the states to grant specific additional powers failed. Congress could not pay its wartime debt and the states failed to pay their congressionally apportioned requisitions. When a postwar economic depression began in late 1784, most of the state legislatures enacted debtor‐relief measures that sometimes violated the property rights of creditors. Sporadic violence by debtors, such as Shays's Rebellion in Massachusetts, erupted in several states. Unable to address adequately these economic, political, social, and diplomatic crises, Congress on 21 February 1787 called a Constitutional Convention to meet in Philadelphia in May “for the sole and express purpose of revising the Articles of Confederation” so they would be “adequate to the exigencies of government and the preservation of the Union.”

In fact, when the Constitutional Convention of 1787 convened, the delegates voted immediately to abandon the Articles of Confederation and to draft a new constitution that would create a national government. The Virginia Plan, based mainly on the ideas of James Madison, served as the Convention agenda. After four months, thirty‐nine delegates signed the document on 17 September 1787. Every part of the new Constitution was found either in a state constitution, the Articles of Confederation, or the Northwest Ordinance (passed two months earlier by Congress). Despite this apparent lack of originality, the new Constitution was unique in the way it married the concepts of separation of powers, checks and balances, and federalism.

Provisions of the Constitution.

The Constitution consisted of seven articles introduced by a preamble setting forth the aims of the American people. The first seven words of the preamble heralded a profound change: “We the People of the United States.” The people—not the states—entered into this new compact to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

The first article—half of the entire document—dealt with the legislative branch of the new government. All legislative power was given to a bicameral Congress composed of a Senate and House of Representatives. Each state was to have two senators elected for a six‐year term by the state legislatures. The vice president of the United States served as the Senate's president and could vote only to break ties.

Members of the House of Representatives, elected for two‐year terms, were to be apportioned among the states on the basis of population, counting each slave as three‐fifths of a person. Individuals qualified to vote for the lower house of their state's legislature were eligible to vote for that state's federal representatives. Every ten years a federal census would be taken, after which Congress would reapportion representatives among the states. All revenue bills had to originate in the House but the Senate could offer amendments.

The regulations for electing Congress were left to each state legislature, but Congress could alter such rules. Congress had to assemble at least once a year. Each house elected its own officers, adopted its own rules, kept its own journals, and judged the elections and qualifications of its members. Recall and mandatory term limits were eliminated. Members' salaries were to be set by law and paid by the federal treasury. No member could hold another federal office.

Congress was specifically empowered to lay and collect taxes, borrow money, regulate foreign and interstate commerce, establish rules for naturalization and uniform bankruptcy laws, coin money, fix the standard of weights and measures, punish counterfeiters, establish a post office, grant copyrights and patents, create inferior judicial courts, define and punish piracy and crimes at sea, declare war, raise and maintain an army and navy, provide rules for the state militias, exercise complete jurisdiction over the federal capital and other federal properties, and “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” The president had veto power over any bill passed by Congress, subject to a congressional override by a two‐thirds vote of each house.

The Constitution specifically prohibited Congress from passing bills of attainder, ex post facto laws, and export duties; granting titles of nobility; suspending the writ of habeas corpus except in emergencies; and prohibiting the foreign slave trade before 1808. The states, too, were prohibited from passing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts; coining money; issuing paper money; declaring anything but gold and silver legal tender; entering into treaties or alliances; or laying import or export duties without the consent of Congress.

Article II vested the executive power of the federal government in a president and vice president, both elected for four‐year terms by specially chosen electors. The electors themselves were to be elected in a manner decided by each state legislature. The president, who had to be a natural‐born citizen of the United States, was to be commander‐in‐chief of the military and the state militias when brought into federal service. He or she could grant pardons and reprieves, and, with the advice and consent of the Senate, make appointments and enter into treaties, subject to the approval of two‐thirds of the senators present. The president, vice president, and all civil officers of the United States are removable from office on impeachment by the House of Representatives and conviction by the Senate for “Treason, Bribery, or other High Crimes and Misdemeanors.” When the president is impeached, the Chief Justice of the United States presides over the trial in the Senate.

The third branch of government—the judiciary—is the least defined in the Constitution. Article III provides for one Supreme Court and such inferior courts as Congress shall create. Federal judges hold their appointments during good behavior and their salaries cannot be diminished during their tenure. The jurisdiction of the federal judiciary extends to all cases of law and equity arising under the Constitution, federal laws, and treaties; and to cases involving the United States, cases between citizens of different states, and other cases where a national venue was considered important. The original jurisdiction of the U.S. Supreme Court was spelled out; in all other cases the Court could exercise appellate jurisdiction in law and fact, with such exceptions as Congress might by law direct.

Jury trial was guaranteed in all criminal cases (except impeachments) and these trials had to be held in the state where the crime was committed. Treason was defined narrowly as waging war against the United States or adhering to, or giving aid and comfort to, the enemies of the United States. Conviction for treason needed the testimony in open court of two witnesses to the same overt act. Punishment for treason could not extend to family or friends of the guilty party.

Article IV provided that each state give “full faith and credit” to the public acts, records, and judicial proceedings of every other state. Citizens of each state were to be entitled to all of the “privileges and immunities of Citizens in the several States.” States were required to extradite persons wanted for crimes in other states, and slaves who escaped to another state could not be freed. Congress was authorized to make rules and regulations for federal territories and to admit new states into the Union. The United States guaranteed every state a republican form of government, protection from foreign invasion, and (upon application of the state legislature or executive) assistance against domestic violence.

Unlike the Articles of Confederation, the Constitution provided for a realistic (though difficult) method of amendment. According to Article V, amendments to the Constitution could be proposed by two‐thirds of both houses of Congress or by a constitutional convention that Congress must call at the request of two‐thirds of the state legislatures. Proposed amendments could be adopted by the agreement of three‐fourths of either the state legislatures or state ratifying conventions, whichever method Congress directs.

Article VI validated all debts and engagements entered into by the United States before the adoption of the Constitution and declared the Constitution, all laws made in pursuance of it, and all treaties to be the supreme law of the land, notwithstanding anything in the constitution or laws of any state. Article VI also required all federal and state officials to take an oath to support the Constitution, but prohibited any religious test for federal officeholding.

Ratification.

Unlike the Articles of Confederation, unanimous ratification by the state legislatures was not required to adopt the Constitution. Article VII provided that the ratification of nine state conventions would be sufficient to establish the Constitution among the ratifying states.

The Constitutional Convention sent the engrossed manuscript Constitution to Congress, which transmitted the new form of government to the states for their ratification in specially elected conventions. An intense public debate over the Constitution raged for almost a year. In June 1788 New Hampshire became the ninth state to ratify, followed quickly by Virginia and New York. A key issue in this debate focused on the kind of government to be created by the Constitution: Did Article I, section 8, grant Congress power to do anything necessary to promote the general welfare and national defense, or did it grant to Congress only limited, enumerated powers? In other words, would the new government be a consolidated national government that would eliminate the sovereignty of the states or would it be a limited government of specified powers that would leave the states sovereign and free to act in all other matters? Coupled with this issue was the debate over the omission of a federal bill of rights, which supporters of the Constitution argued was unnecessary because the Constitution's internal checks on government would prevent any violation of rights.

In several states, ratification was achieved only with a promise that amendments to the Constitution, especially a bill of rights, would be proposed in the first Congress. Largely through the efforts of James Madison, the first Congress in September 1789 proposed a Bill of Rights, which was adopted with little public debate in December 1791.

A Living Document.

The debate over the breadth of federal power was renewed soon after the establishment of the new federal government. In essence, the question was how to interpret the “necessary and proper” clause. Should the Constitution be broadly or strictly interpreted? The followers of Alexander Hamilton advocated a broad interpretation, which President George Washington endorsed. The election of Thomas Jefferson as president in the “Revolution of 1800” heralded a shift to a stricter interpretation that circumscribed the actions of the federal government. The Civil War and the three constitutional amendments adopted in its aftermath, particularly the Fourteenth Amendment, allowed the federal government in the twentieth century to expand the protections embodied in the Bill of Rights to include actions by state and municipal governments. Over the years, ebbs and flows occurred in how the branches of the federal government viewed their constitutional powers and responsibilities. Not until the New Deal Era and World War II did the expansion of federal power through a broad reading of the Constitution's national defense, commerce, and general‐welfare clauses overwhelmingly change the nature of the relationship between the states and the federal government. As the twentieth century ended, the debate over federalism continued.
See also Albany Congress; Early Republic, Era of the; Federal Government; Republicanism; Revolution and Constitution, Era of; Slavery: Development and Expansion of Slavery; States' Rights; Suffrage; Taxation.

Bibliography

Robert Allen Rutland , The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787–1788, 1966.
Gordon S. Wood , The Creation of the American Republic, 1776–1787, 1969.
Merrill Jensen, John P. Kaminski, and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, 15 vols. to date, 1976–.
Willi Paul Adams , The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, 1980, expanded ed., 2000.
Forrest McDonald , Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985.
Richard B. Morris , The Forging of the Union, 1781–1789, 1987.
Patrick T. Conley and John P. Kaminski, eds., The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, 1988.
Bernard Schwartz , The Great Rights of Mankind: A History of the American Bill of Rights, expanded ed., 1992.
Gordon S. Wood , The Radicalism of the American Revolution, 1992.

John P. Kaminski