Chapter 6: Framing the Constitution
Objectives: We will examine the positions of those who called for a strong centralized government. We will examine the issues, debates, and compromise of the Constitutional convention. We will examine the limits to the Constitution. We will examine the growth of the Federalists and Anti Federalists factions through the Constitutional debate. We will examine the formation of the judiciary branch.
Psa_119:165 Great peace have they which love thy law: and nothing shall offend them.
So unpopular and ineffectual Congress had become by the mid- 1780s, that they had great difficulty in securing a quorum to ratify the treaty with Great Britain ending the Revolutionary War. Eighteen members representing only eight states, voted the confederation s most important piece of legislation, the Northwest Ordinance. In the meantime, a major public debate was beginning over the future of the Confederation.
Advocates of Centralization: Although weak, the confederation probably satisfied the majority of the people who believed they had fought the Revolutionary War against the threats of tyrannical authority. They wanted to keep political power centered in the states where they could carefully and closely control it.
Advocates of Centralization: During the 1780s, some of the wealthiest and most powerful groups in the country began to clamor for a more genuine national government capable of dealing with the nation s problems. Particularly the economic problems that most directly afflicted them. Some military men, such as the hereditary society of Cincinnati (Formed by Revolutionary army officers in 1783), were disgruntled at the refusal of Congress to fund their pensions.
Advocates of Centralization: Some even thought of forming a military dictatorship and directly challenging congress until George Washington intervened and blocked the potential rebellion. American manufactures and artisans and mechanics of the nation s cities and towns wanted to replace the various state tariffs with a uniform high national duty.
Advocates of Centralization: Merchants and shippers wanted to replace the thirteen different (and largely ineffective) state commercial policies with a single, national one. People who were owed money wanted to stop the states from issuing paper money, which would lower the value of what they received in payment.
Advocates of Centralization: Large property owners looked for protection from the threat of mobs, a threat that seemed particularly menacing in light of such episodes as Shays rebellion. This fear or disorder and violence expressed a tension between the resolute defense of individual rights and the public concern for safety and security. Frequent conflicts between liberty and order was and remains a central feature of American democracy.
Advocates of Centralization: By 1786, all agreed that the Confederation should be changed including the defenders. All agreed that the government needed strengthening at its weakest point, its lack of power to tax.
Advocates of Centralization: One of the leading reformers was Alexander Hamilton. A New York lawyer and one time military aide to General Washington. Hamilton was unhappy with the Articles and the weak central government. He called for a national convention to overhaul the entire document. He founded an important ally in James Madison of Virginia, who persuaded the Virginia legislature to convene an interstate conference on commercial questions.
Advocates of Centralization: Only five states sent delegates to the meeting, held in Annapolis, Maryland in 1786. But the delegates approved a proposal drafted by Hamilton who was representing New York. The delegates recommended that Congress call a convention of special delegates from all the states to gather in Philadelphia the next year to form a strong Constitution.
Advocates of Centralization: At the moment in 1786 there seemed little possibility that the Philadelphia convention would attract much interest. Only by winning George Washington s support would there be support but he shows initially little interest. But when Shays Rebellion happened, Washington was alarmed and he left his home at Mt. Vernon in Virginia for the Constitutional Convention in Philadelphia. His support gave the meeting immediate credibility.
Advocates of Centralization: Jefferson was less alarmed and stated that a little rebellion now and then, is a good thing, and as necessary in the political world as storms in the physical.
The Divided Convention: o Fifty Five men representing all the states except Rhode Island attended one or more sessions of the convention in Philadelphia from May to September 1787. o Founding Fathers were relatively young men, their average age was 44 and only one delegate (Benjamin Franklin then eighty one was advanced age.
The Divided Convention: o They were well educated for the standards of the time. o Most represented the great propertied interests of the country and many feared democracy was folly. o Yet all were products of the American Revolution suspicious of the concentrated power. o The convention unanimously chose Washington to preside over its sessions. It was closed session from public and the press.
The Divided Convention: o The members then ruled that each state delegation would have a single vote. o Major decisions required only a simple majority. o Virginia, the most populous nation sent James Madison a intellectual leader that devised a detailed plan for a new national government, and the Virginians used it to control the agenda form the moment the convention began.
The Divided Convention: o Edmund Randolph of Virginia began the discussion by proposing that a national government ought to be established consisting a supreme legislative, executive, and judiciary. o The Confederation in contrast had no executive branch. o But so committed were the delegates for reform that they passed this resolution with little debate.
Madison s Virginia Plan: o A new national legislature consisting of two houses. o In the lower house, the states would be represented in proportion to their population, thus the largest state (Virginia) would have about ten times as many representatives as the smallest (Delaware). o Members of the upper house would be elected by the lower house under no rigid system of representation; o Thus some of the smaller states might at times have no members at all in the upper house. o The proposal had immediate opposition to smaller states such as New Jersey. o Some argued that Congress had no other authority in the convention but to revise the Articles.
The New Jersey Plan: o William Patterson of New Jersey submitted the alternative plan. o That proposed a federal rather than a national government. o This plan would preserve the one house legislature, in which each state had equal representation but it gave congress expanded powers to tax and to regulate commerce.
The New Jersey Plan: o The delegates voted to table Patterson s proposal but not without taking note of substantial support for it among small-state representatives. o The Virginia Plan was still in play but its supporters realized they would have to make concessions to the small states if the convention was ever to make an agreement.
The Debate: o They conceded an important point by agreeing to permit the members of the upper house to be elected by the state legislatures rather than by the lower house of the national legislature. o Thus each state would be sure of always having at least one member in the upper house.
The Debate: o But many questions remained. o Would the states be equally represented in the upper house or would the large states have more members than small ones? o Would slaves (who could not vote) be counted as part of the population in determining the size of a state s representation in Congress, or were they to be considered simply property?
The Debate: o Delegates from large slave states such as South Carolina wanted it both ways. o They argued that slaves should be considered persons in determining representation. o But they wanted slaves to be considered property if the new government were to levy taxes on each state on the basis of population.
The Debate: o Representatives from states where slavery had disappeared or was expected soon to disappear argued that slaves should be included in calculating taxation but not representation.
The Compromise: o Tensions arose, but Franklin s soothing presence helped delegates not to give up. o Finally on July 2, the convention agreed to create a grand committee with a single delegate from each state (and with Franklin as chairman), to resolve the disagreements.
The Compromise: o The committee produced a proposal that would be the basis of the Great Compromise. o Its most important achievement was resolving the difficult problem of representation. o The proposal called for a legislature in which the states would be represented in the lower house on the basis of population.
The Compromise: o Each slave would count as threefifths of a free person in determining the basis for both representation and direct taxation. o Three-fifths was a false assumption that slaves were three-fifths productive as a free worker and thus contributed only three fifths as much wealth to the state.
The Compromise: o The Committee proposed that in the upper house the states should be represented equally with two members apiece. o The proposal broke the deadlock. o On July 16, 1787 the convention voted to accept the compromise. o Over the next few weeks, the convention as a whole agreed to another important compromise on the explosive issue of slavery.
The Compromise: o The representatives of the Southern states feared that the power to regulate trade might interfere with their agrarian economy o The Southern economy relied heavily on sales abroad and with slavery. o In response the convention agreed that the new legislations would not be permitted to tax exports;
The Compromise: o Congress would also forbidden to impose a duty of more than $10 a head on imported slaves, and it would have no authority to stop the slave trade for twenty years. o The convention chose to ignore differences of opinion it was unable to resolve leaving important questions alive that would surface again years later.
The Compromise: o The Constitution provided no definition of citizenship. o Most important was the absence of a list of individual rights which would restrain the powers of the national government in the way that bills of rights restrained the state governments. o Madison opposed the idea, arguing that specifying rights that were reserved to the people would, in effect, limit those rights. o Other delegates feared that without such protections the national government might abuse its new authority.
The Constitution of 1787: o Many people contributed, but the single most important was James Madison, considered the most creative political thinker of his generation. o Madison contributed two important philosophical questions that had served as obstacles to the creation of an effective national government. o The question of sovereignty and the question of limiting power.
The Constitution of 1787: o The question of sovereignty had been one of the chief sources of both friction between the colonies and Great Britain, and its continued to trouble Americans as they attempted to create their own government. o How can the national and state government exercise sovereignty at the same time? o The answer was that all power ultimately flowed from the people. o Neither the Federal or state government was truly sovereign.
The Constitution of 1787: o The federal government was to have broad powers, including: o the power to tax, o regulate commerce, o to control the currency o and to pass such laws as would be necessary and proper for carrying out its other responsibilities.
The Constitution of 1787: o Resolving the problem of sovereignty made possible one of the distinctive features of the constitution, its distribution of powers between the national and state governments. o The Constitution and the government it created were to be the supreme law of the land; no state would have the authority to defy it.
The Constitution of 1787: o The constitution accepted the existence of separate states and left important power in their hands. o The Constitution also addressed the problem of concentrated authority. o Americans were frightened with creating a tyrannical government. o This was a chief obstacle for creating a national government.
The Constitution of 1787: o Drawing from the ideas of Montesquieu, most Americans believed the best way to avoid tyranny was to keep government close to the people. o A republic confined to a relatively small area was ideal. o A large nation would breed corruption and despotism because the rulers would be so distant from most of the people that there would be no way to control them.
The Constitution of 1787: o These assumptions led to the belief that individual states must remain sovereign and that a strong national government would be dangerous. o Madison helped break this assumption by arguing that a large republic would be less, not more, likely to produce tyranny. o Madison believed that it would contain so many different factions that no single group would ever be able to dominate it.
The Constitution of 1787: o This idea of many centers of power checking each other and preventing any single, despotic authority from emerging. o This not only made possible the idea of a large republic, but also helped shape the internal structure of the federal government.
The Constitution of 1787: o The constitution s most distinctive feature was its separation of powers within the government, its creation of checks and balances among the legislative, executive, and judicial branches. o The array of forces within the government would constantly compete with and often frustrate one another.
The Constitution of 1787: o Congress would have two chambers, the Senate and the House of Representatives each with members elected in a different way and for different terms. o Each checking the other since both would have to agree before any law could be passed. o The president would have the power to veto acts of Congress. o The federal courts would have protection from the executive and legislative because judges and justices, once appointed by the president and confirmed by senate would serve for life.
The Constitution of 1787: o The Federal structure of the government, which divided power between the states and the nation with a system of checks and balances. o Which divided power among various elements within the national government itself, were designed to protect the United States from the kind of despotism Americans believed had emerged in England.
The Constitution of 1787: o But they were also designed to protect the nation from another kind of despotism, perhaps equally menacing, the tyranny of the people. o Fear of the mob of an excess of democracy was at least an important to the framers as fear of a single tyrant. o Shay s rebellion had been only one example, they believed of what could happen if a nation did not defend itself against the unchecked exercise of popular will.
The Constitution of 1787: o Thus in the new government only the members of the House of representatives would be elected directly by the people. o Senators, the president, and federal judges would be insulated in varying degrees from the public. o September 17, 1787, thirty-nine delegates signed the Constitution.
The Limits of the Constitution: o The Constitution of 1789 was a document established as a democratic republic for white people, mostly white men. o Indians and African Americans, the two largest population sharing the land virtually had none of the rights and privileges provided to the white population.
The Limits of the Constitution: o Native Americans had at least an appearance of legal status. o With the treaties that were signed but ultimately did not survive and their lands were become more and more lessen from Western expansion.
The Limits of the Constitution: o Among the White leaders of the United States, there were eminent figures who believed Indians could in fact join the republic. o Thomas Jefferson thought they could be civilized. o But efforts to teach Indians Anglo farming methods, etc., were rejected and sought to retain their own culture. o This rejection of white civilization contributed to Indians loosing support from these eminent Americans and Indians were not granted citizenship until 1920.
The Limits of the Constitution: o African American slaves were given virtually none of the rights and protections that the new government provided white people. o One of the first laws passed by the new U.S. under the Constitution was the Naturalization Act of 1790, which helped legalize the stream of immigrants coming into the country and allowed them to become citizens. o But it defined citizenry as status available only to white people. o Even free black people were barred from citizenship.
The Limits of the Constitution: o Jefferson who briefly tried to give Indians legal status did not do so for African Americans. o He was a uneasy defender of slavery. o He could never accept the fact that African Americans were equal in knowledge and intelligence with white people. o Jefferson long relationship with Sally Hemmings, a slave that he lived with after his wife s death and fathered several children did not change his mind on slavery. o Jefferson deeply in debt before he died sold his slaves but liberated the Hemmings family.
Federalists and Antifederalists: o The delegates at Philadelphia had greatly exceeded their instructions from Congress and the States. o Instead of making simple revisions to the Articles of Confederation, they had produced a plan, a far completely different form of government. o They feared therefore that the Constitution might never be ratified under the rules of the Articles of Confederation, which required unanimous approval by the state legislatures.
Federalists and Antifederalists: o So the convention changed the rules. o The Constitution specified the new government would come into existence among the ratifying states when any nine of the thirteen had ratified it. o The delegates recommended to Congress that special state conventions, not state legislatures, consider the document. o They could make no changes until after the Constitution was ratified by the required number of states at which point the Constitution amendment process could be used (As it was for the Bill of Rights).
Federalists and Antifederalists: o The old Confederation Congress, now overshadowed by the events in Philadelphia, passively accepted the convention s work and submitted it to the states for approval. o All the state legislatures except Rhode Island s elected delegates to ratifying conventions, most of which began meeting by early 1788.
Federalists and Antifederalists: o Even before the ratifying conventions convened, a great national debate on the new Constitution had begun. o Supporters of the Constitution had a number of advantages. o They were better organized than their opponents, and they had the support of the two most eminent men in America, Franklin and Washington. o They seized the term Federalist that the term that opponents of centralization once used implying that the opponents were less committed to a national government.
Federalists and Antifederalists: o The Federalists had the support of the ablest political philosophers of their time. o Alexander Hamilton, James Madison, and John Jay. o They wrote a series of essays widely published in newspapers throughout the nation explaining the virtues of the Constitution.
Federalists and Antifederalists: o They shared the same pseudonym Publius in their articles. o The essays were later issued as a book that they are known today as The Federalist Papers. o They are among the most important American contributions to political theory.
Federalists and Antifederalists: o The Federalists called their critics antifederalists. o Antifederalists believed: o Their intelligent arguments included: o They were the defenders of the true principles of the Revolution. o The Constitution would betray those principles by establishing a strong, potentially tyrannical, center of power in the new national government.
Federalists and Antifederalists: o The Federal Government they claimed would increase taxes, obliterate the states, wield dictatorial powers. o And would favor the well born over the common people and put an end to individual liberty.
Federalists and Antifederalists: o But their biggest complaint was that the Constitution lacked a bill of rights. o A concern that revealed one of the most important sources of their opposition: o A basic mistrust of human nature and of the capacity of human beings to wield power. o The Antifederalists argued that any government that centralized authority would inevitably produce despotism.
Federalists and Antifederalists: o Their demand for the Bill of Rights was a product of this belief: o No government could be trusted to protect the liberties of its citizens: o Only by enumerating the natural rights of the people could there be any assurance that those rights would be preserved.
Federalists and Antifederalists: o At the heart of the debate between the two sides was a battle between two fears. o The Federalists were afraid above all, of disorder, anarchy, chaos, they feared the unchecked power of the masses. o And they sought in the Constitution to create a government that would function at some distance from popular passions.
Federalists and Antifederalists: o The Antifederalists were not anarchists; they too recognized the need for effective government. o But they were more concerned about the dangers of concentrated power than the dangers of popular will. o They opposed the Constitution for some of the same reasons why the Federalists supported it. o Because it placed obstacles between the people and the exercise of power.
Federalists and Antifederalists: o Despite the Antifederalists efforts, ratification proceeded quickly. o The two most populous states: New York and Virginia, and also Massachusetts ratified the Constitution with the assumption that a Bill of Rights would be added to the Constitution. o Rhode Island leaders had opposed the Constitution almost from the start, did not even call a convention to consider ratification.
Completing the Structure: o Many delegates favored ratification because they expected to see George Washington to preside over the new government. o John Adams a leading Federalist became Vice President.
Completing the Structure: o The First Congress filled gaps of the Constitution and was almost a continuation of the Constitution, and the most important task was drafting a Bill of Rights. o By early 1789, Madison had come to agree that some sort of Bill of Rights was essential to legitimatize the new government in the eyes of its opponents.
Completing the Structure: o Congress approved twelve amendments but ten of them were ratified by the states at the end of 1791. o What we know as the Bill of Rights in these first ten amendments to the Constitution. o Nine of them placed limitations on Congress forbidding it to infringe on certain basic rights: o freedom of religion, speech, and press; o immunity from arbitrary arrest, trial by jury, and others.
Completing the Structure: o Tenth Amendments reserved to the states all powers except those specifically withheld from them or delegated to the Federal Government. o Of the Federal Courts, the Constitution stated: The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress from time to time ordain and establish.
Completing the Structure: o It left to Congress to determine the number of Supreme Court judges to appointed and the kinds of lower courts to be organized. o In the Judiciary Act of 1789 Congress provided for a Supreme Court of six members, with a chief justice and five associate justices; o 13 districts with one judge apiece; three circuit court of appeal, each to consist of one district judge sitting with two of the Supreme Court Justices.
Completing the Structure: o In the same act, Congress gave the Supreme Court power to make the final decisions in cases involving the Constitutionality of state laws. o The Constitution referred indirectly to executive departments but did not specify what or how many there should be. o The first Congress created three such departments: State, treasury, and war and also established the office of the Attorney General o Washington appointed Alexander Hamilton as the Secretary of Treasury. o Secretary of War for General Henry Knox. o Thomas Jefferson was Secretary of State. o Edmund Randolph became the Attorney General.
Constitution Endures And the Constitution guarantees to the people the right of self-government, providing that representatives elected by the popular vote shall enact and administer the laws. Freedom of religious faith was also granted, every man being permitted to worship God according to the dictates of his conscience. Republicanism and Protestantism became the fundamental principles of the nation. These principles are the secret of its power and prosperity. The oppressed and downtrodden throughout Christendom have turned to this land with interest and hope. Millions have sought its shores, and the United States has risen to a place among the most powerful nations of the earth. {GC 441.1}