WEEK SIX READING

WEEK SIX READING

The Constitution of the United States of America

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PREFACE

THE CONSTITUTION OF THE UNITED STATES sets forth the nation's fundamental laws.
It establishes the form of the national government and defines the rights and liberties of the American people. It also lists the aims of the national government and the methods of achieving them. Previously, the nation's leaders had established an alliance among the states under the Articles of Confederation. But the Congress created by the Articles lacked the authority to make the states work together to solve national problems.

After the states won independence in the Revolutionary War (1775-1783), they faced all the problems of peacetime government. The states had to enforce law and order, collect taxes, pay a large public debt, and regulate trade among themselves. They also had to deal with Indian tribes and negotiate with other governments. Leading statesmen, such as George Washington and Alexander Hamilton, began to discuss the need to create a strong national government under a new constitution.

Hamilton helped bring about a constitutional convention that met in Philadelphia, Pennsylvania, in 1787 to revise the Articles of Confederation. But a majority of the delegates at the convention decided instead to write a new plan of government -- the Constitution of the United States. The Constitution established not merely a league of states, but a government that exercised its authority directly over all citizens. The Constitution defines the powers delegated to the national government. In addition, it protects the powers reserved to the states and the rights of every individual.

THE SUPREME LAW OF THE LAND

The Constitution consists of a preamble, seven articles, and 27 amendments. It sets up a federal system by dividing powers between the national and state governments. It also establishes a balanced national government by separating powers among three independent branches -- the executive, the legislative, and the judicial. The executive branch, the President, enforces national laws; the legislative branch, the Congress, makes national laws; and the judicial branch, the Supreme Court and other federal courts, applies and interprets laws when deciding legal disputes in federal courts.

Federal powers listed in the Constitution include the right to collect taxes, declare war, and regulate interstate and foreign trade. In addition to these delegated, or expressed powers (those listed in the Constitution), the national government has implied powers (those reasonably implied by the delegated powers. The implied powers enable the government to respond to the changing needs of the nation. For example, Congress had no specific delegated power to print paper money. But such a power is implied in the delegated powers of borrowing and coining money.

In some cases, the national and state governments have concurred powers -- that is, both levels of government may act. The national government laws are supreme in case of a conflict. Powers that the Constitution does not give to the national government or forbid to the states, reserved powers, belong to the people or to the states. State powers include the right to legislate on divorce, marriage, and public schools. Powers reserved for the people include the right to own property and to be tried by a jury.

The Supreme Court has the final authority to interpret the Constitution. It can set aside any law -- federal, state, or local -- that a majority of the justices believes conflicts with any part of the Constitution.

THE NEED FOR THE CONSTITUTION

Confederation was not strong enough to govern the new nation. For example, it lacked an executive branch and a system of national courts. It could not regulate trade between the states or tax the states or their citizens. It was little more than an assembly of the representatives of 13 independent states.

In 1783, after the Revolutionary War, the nation entered a period of unstable commercial and political conditions. Alexander Hamilton and his supporters would have had little success in their campaign for a new constitution if conditions had been better. Some historians perhaps have painted the troubles of the new republic in much too gloomy colors. But little doubt remains that the situation became steadily worse after 1783. Each state acted almost like an independent country. Each ran its own affairs exactly as it saw fit, with little concern for the needs of the republic. The states circulated a dozen different currencies, most of which had little value. Neighboring states taxed each other's imports. Great Britain refused to reopen the channels of trade that the colonies had depended on for their economic well-being. The state legislatures refused to pay the debts they had assumed during the Revolutionary War. Many states passed laws that enabled debtors to escape paying their obligations.

Worst of all, some people began to think once again of taking up arms in order to solve their problems. In western Massachusetts in 1786, hundreds of farmers under Captain Daniel Shays rebelled against the state government. State troops finally put down Shays's Rebellion. George Washington and other leaders wondered whether the colonies had rebelled against Great Britain in vain. They felt it was time to end these troubles and bring peace and order by forming a new national government. This new government would have to be strong enough to gain obedience at home and respect abroad.

Representatives from five states met in Annapolis, Maryland, in 1786. They proposed that the states appoint commissioners to meet in Philadelphia and consider revising the Articles of Confederation. Congress agreed to the proposal and suggested that each state select delegates to a constitutional convention.

THE CONSTITUTIONAL CONVENTION

The Convention was supposed to open on May 14, 1787. But few of the 55 delegates had arrived in Philadelphia by that date. Finally, on May 25, the Convention formally opened in Independence Hall. Twelve states had responded to the call for the Convention. Rhode Island had refused to send delegates because it did not want the national government to interfere with Rhode Island's affairs.

Of the 55 delegates, 39 signed the United States Constitution on September 17, 1787. One of the signers was John Dickinson of Delaware, who left the Convention but asked another delegate, George Read, to sign for him. William Jackson, the Convention secretary, witnessed the signatures. The delegates included some of the most experienced and patriotic men in the new republic. George Washington served as president of the Convention. Benjamin Franklin, at the age of 81, attended as a Representative of Pennsylvania. The brilliant Alexander Hamilton represented New York. James Madison of Virginia received the title of "Father of the Constitution" with his speeches, negotiations, and attempts at compromise. Madison told the delegates they were considering a plan that would "decide forever the fate of republican government." He kept a record of the delegates' debates and decisions.

Other men who had much to do with writing the Constitution included John Dickinson, Gouverneur Morris, Edmund Randolph, Roger Sherman, James Wilson, and George Wythe. Morris was probably the most influential delegate after Madison and Washington. He was given the task of putting all the Convention's resolutions and decisions into polished form. Morris actually "wrote" the Constitution. An original copy of the document is preserved in the National Archives building in Washington, D.C.

Several important figures of the time did not attend the Convention. John Adams and Thomas Jefferson were absent abroad on other government duties. Samuel Adams and John Jay failed to be appointed delegates from their states. Patrick Henry refused to serve after his appointment because he opposed granting any more power to the national government. Three leading members of the convention -- Elbridge Gerry, George Mason, and Edmund Randolph -- refused to sign the Constitution because they disagreed with parts of it.

THE BACKGROUND OF THE CONSTITUTION. The delegates to the Constitutional Convention relied greatly on past experience as they worked to create a new government. They recalled many important events in the development of constitutional government. These included the granting of Magna Carta, an English constitutional document, in 1215, and the meeting of the Jamestown Representative Assembly in 1619. Some of the colonies also served as examples of constitutional forms of government. Colonial governments had weaknesses but had progressed beyond other governments of their time in achieving liberty under law.

About the time of the Revolutionary War, several American states established constitutional governments. In 1777, John Jay of New York had helped write a constitution for his state. John Adams of Massachusetts had helped write the Massachusetts Constitution of 1780. Delegates to the Constitutional Convention in Philadelphia used many ideas and words from the constitutions of these and other states.

The delegates also drew on their own experiences. For example, Benjamin Franklin had proposed a plan at the Albany Congress of 1754 to unify the colonies under a central government. Washington remembered his own problems during the war when, as Commander-in-Chief, he had to work with the weak Confederation government. Almost every delegate to the Convention had served as a soldier or administrator of the government. The delegates often disagreed on details but were united in wanting the new government to be strong enough to rule the nation, but no so strong as to threaten the liberties of the states and of the people.

THE COMPROMISES. The task of creating a new government was not easily accomplished. Disputes among the delegates nearly ended the Convention on several occasions. For example, delegates from the large and more populous states disagreed with those from the small states about representation in the national legislature. The larger states favored the Virginia Plan, under which population would determine the number of representatives a state could send to the legislature. The smaller states supported the New Jersey Plan, which proposed that all the states would have an equal number of representatives. The Connecticut delegates suggested a compromise that settled the problem. Their plan provided for equal representation in the Senate, along with representation in proportion to population in the House of Representatives. This proposal became known as the Connecticut Compromise or the Great Compromise.

Compromises also settled conflicts over the issue of slavery. The delegates from the Northern states wanted Congress to have the power to forbid the foreign slave trade and eventually to abolish slavery. Most Southern delegates did not wish Congress to have this power. A compromise decided that Congress would not be allowed to regulate the foreign slave trade until 1808. Another compromise involved the question of how to count slaves in determining the number of congressmen a state could have. Slaves were not considered citizens, and so the Convention agreed that only three-fifths of them could be counted.

The delegates agreed that each state should hold a special convention to discuss and vote on the Constitution. They also decided that as soon as nine states had ratified (approved) the Constitution, the Constitution would take effect and they could begin to organize their new government.

RATIFYING THE CONSTITUTION

Less than three months after the Constitution was signed, Delaware became the first state to ratify it, on December 7, 1787. New Hampshire was the ninth state, putting the Constitution into effect on June 21, 1788. But the Founding Fathers could not be sure that the Constitution would be generally accepted until the important states of New York and Virginia had ratified it. Powerful organized opposition to the Constitution had developed in these two states and in others. Such men as Elbridge Gerry, Patrick Henry, Richard Henry Lee, and George Mason spoke out against ratification.

Critics objected that a bill of rights had not been included, that the President had too much independence, and that the Senate was too aristocratic. They also thought Congress had too many powers and the national government had too much authority. Friends of the Constitution rallied support for ratification. They became known as Federalists. Their opponents were called Antifederalists. The two groups promoted their causes in newspapers, in pamphlets, and in debates in the ratifying conventions. The groups developed into the first American political parties.

Constitution on June 25, 1788, and New York did so on July 26. Early in January 1789, all the ratifying states except New York (which failed to appoint electors by the deadline) selected presidential electors in their legislatures or by a direct vote of the people. On February 4, the electors named George Washington as the first President of the United States. The first Congress under the Constitution met in New York City on March 4. Washington was inaugurated on April 30. But North Carolina and Rhode Island refused to approve the Constitution and take part in the new government until Congress agreed to add a bill of rights.

THE BILL OF RIGHTS

The Federalists might never have obtained ratification in several important states if they had not promised to add a bill of rights to the Constitution. Most state constitutions adopted during the Revolution had included a clear declaration of the rights of all people. Most Americans believed that no constitution could be considered complete without such a declaration. George Mason of Virginia was responsible for the first and most famous American bill of rights, the Virginia Declaration of Rights of 1776. He and Patrick Henry might have prevented ratification of the Constitution in Virginia if the Federalists had not agreed to their demands for amendments.

James Madison led the new Congress in proposing amendments. He suggested 15 amendments, and the Congress accepted 12 of them to be submitted for ratification by the state legislatures under the amending process outlined in the Fifth Article of the Constitution. By December 15, 1791,the necessary legislatures in three-fourths of the states had approved 10 of the 12 amendments. These 10 amendments are known as the Bill of Rights. One of the two rejected amendments dealt with the size of the House of Representatives. It would have changed representation from no more than one representative for every 30,000 persons to no more than one for every 50,000 persons. The other rejected amendment provided that Congress could not change the salaries of its members until after an election of representatives had been held. It was ratified 202 years later and it became the 27th Amendment.

The Antifederalists accepted defeat when the Constitution was adopted, and then they set about to win power under its rules. Their actions set a style for American politics that has never changed. Americans sometimes feel dissatisfied with the policies and practices of those who govern. But few Americans have condemned the constitutional system or have felt that a second Constitutional Convention might establish a better one.

THE DEVELOPMENT OF THE CONSTITUTION

James Madison declared, "In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce." The Constitution was designed to serve the interests of the people -- rich and poor, Northerners and Southerners, farmers, workers, and businessmen. Through the years, the Constitution has been interpreted to meet the changing needs of the United States.

Delegates to the Constitutional Convention believed strongly in the rule of the majority, but they wanted to protect minorities against any unjustness by the majority. They achieved this goal by separating and balancing the powers of the national government. Other basic constitutional aims included respect for the rights of individuals and states, rule by the people, separation of church and state, and supremacy of the national government.

The Constitution has been amended 27 times, including the Bill of Rights. Amendments may be proposed by two-thirds of each house of Congress or by a national convention called by Congress at the request of the legislatures in two-thirds of the states. An amendment becomes part of the Constitution after being ratified either by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. Congress decides which form of ratification should be used and how much time the states have to consider each amendment. In many cases, Congress has chosen a seven-year period for such consideration.

The delegates to the Constitutional Convention knew they could not write laws for every possible situation. Therefore, they gave Congress the right to pass all laws that are "necessary and proper" to carry out powers granted by the Constitution to the President, Congress, and federal courts. Congress has passed laws to establish such administrative organizations as the Federal Aviation Administration and the Postal Service. Congress also has passed laws to regulate interstate commerce, thereby controlling many aspects of the U.S. economy.

COURT DECISIONS. Federal and state judges apply the Constitution in many court cases. The Supreme Court has the final authority in interpreting the meaning of the Constitution in any specific case. The court has the power of judicial review -- that is, it can declare a law unconstitutional. The Supreme Court has this power largely because of the decision of Chief Justice John Marshall in the case of Marbury v. Madison in 1803. Since that time, the court has ruled that more than 100 federal laws and hundreds of state laws were unconstitutional.

PRESIDENTIAL ACTIONS. Strong Presidents have used their authority to expand the simple words of the Second Article of the Constitution into a source of great presidential power. Such Presidents include George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt, and George W. Bush. Washington, for example, made the President the leading figure in foreign affairs. Lincoln used the powers set forth in the article to free the slaves from the southern states in rebellion during the Civil War (1861-1865).

CUSTOMS have made the Constitution flexible and have added to the powers of the national government. For example, the President's cabinet developed from the words in the Second Article that permit the chief executive to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices."

STATE AND PARTY ACTIONS. The Constitution provides for a general method of electing a President. It does not mention political parties. But state laws and political party practices have changed the constitutional system of voting into the exciting campaigns and elections that take place today.

The Constitution has continued to develop in response to the demands of an ever-growing society through all these methods. Yet the spirit and wording of the Constitution have remained constant. People of each generation have applied its provisions to their own problems in ways that seem reasonable to them.

The British statesman William E. Gladstone described the Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." In a world of change and struggle, the American people have no more precious possession than this great document.

 

THE CONSTITUTION AND SLAVERY:

The Founding Fathers and the Constitution

By the time of the Constitutional Convention in 1787, slavery in the United States was a grim reality. In the census of 1790, there were slaves counted in nearly every state, with only Massachusetts and the "districts" of Vermont and Maine, being the only exceptions. In the entire country 3.8 million people were counted, 700,000 of them, or 18 percent, were slaves. In South Carolina, 43 percent of the population was slave. In Maryland 32 percent, and in North Carolina 26 percent. Virginia, with the largest slave population of almost 300,000, had 39 percent of its population made up of slaves.

In the Articles of Confederation, the nation's first constitution, there is not mention of slavery. The states were represented in Congress by state, with each state picking its own representatives, so population, which became critical in the future House of Representatives, was not relevant. Also, because fugitive slaves, and the abolition movement, were almost unheard of as late as the 1780s, there is no mention of this issue in the Articles. The closest thing to be found is the Fugitive Clause in Article 4, but even that is more geared toward convicts.

There was no great movement in America to abolish slavery in the 1780's, when the Constitutional Convention met. To be sure, there were opponents of slavery, on a philosophical level, but the abolition movement did not appear until the 1830's, when the American Anti-Slavery Society was founded with William Lloyd Garrison writing the organization's nascent statement of principles. Prior to the Convention in 1787, many "Founding Fathers" expressed opinions that condemned slavery.

John Jay, great supporter of the Constitution after its creation and an author of The Federalist wrote in 1786, "It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused."

Oliver Ellsworth, one of the signers of the Constitution wrote, a few months after the Convention adjourned, "All good men wish the entire abolition of slavery, as soon as it can take place with safety to the public, and for the lasting good of the present wretched race of slaves."

Patrick Henry, the great Virginian patriot, refused to attend the Convention because he "smelt a rat," was outspoken on the issue, despite his citizenship in a slave state. In 1773, he wrote, "I believe a time will come when an opportunity will be offered to abolish this lamentable evil. Everything we do is to improve it, if it happens in our day; if not, let us transmit to our descendants, together with our slaves, a pity for their unhappy lot and an abhorrence of slavery."

Thomas Jefferson, author of the Declaration of Independence, which, famously, declares that "all men are created equal," wrote, "There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him." Alas, like many Southerners, Jefferson held slaves, as many as 223 at some points in his life. His family sold his slaves after his death, in an effort to relieve the debt he left his estate in.

In a letter to the Marquis de Lafayette, George Washington wrote, "[Y]our late purchase of an estate in the colony of Cayenne, with a view to emancipating the slaves on it, is a generous and noble proof of your humanity. Would to God a like spirit would diffuse itself generally into the minds of the people of this country; but I despair of seeing it." Washington and his wife held over 300 slaves. He wrote in his will that he'd wished to free his slaves, but that because of intermarriage between his and Martha's slaves, he feared the break-up of families should only his slaves be freed. He directed that his slaves be freed upon her death. His will provided for the continued care of all slaves, paid for from his estate.

The great American scientist and publisher Benjamin Franklin held several slaves during his lifetime. He willed one of them be freed upon his death, but Franklin outlived him. In 1789, he said, "Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils."

Other examples of anti-slavery messages abound from the late 1700's. They illustrate the feelings of some, but those feelings cannot be seen in the product of their works at creating a government. Despite the freedoms demanded in the Declaration and the freedoms reserved in the Constitution and the Bill of Rights, slavery was not only tolerated in the Constitution, but it was codified.

The Constitution has often been called a living tribute to the art of compromise. In the slavery question, this can be seen most clearly. The Convention had representatives from every corner of the United States, including, of course, the South, where slavery was most pronounced. Slavery, in fact, was the backbone of the primary industry of the South, and it was accepted as a given that agriculture in the South without slave labor was not possible. Though slaves were not cheap by any measure, they were cheaper than hiring someone to do the same work. The cultivation of rice, cotton, and tobacco required slaves to work the fields from dawn to dusk. If the nation did not guarantee the continuation of slavery to the South, it was questioned whether they would form their own nation.

Slavery is seen in the Constitution in a few key places. The first is in the Enumeration Clause, where representatives are apportioned. Each state is given a number of representatives based on its population - in that population, slaves, called "other persons," are counted as three-fifths of a whole person. This compromise was hard-fought, with Northerners wishing that slaves, legally property, be uncounted, much as mules and horses are uncounted. Southerners, however, well aware of the high proportion of slaves to the total population in their states, wanted them counted as whole persons despite their legal status. The three-fifths number was a ratio used by the Congress in contemporary legislation and was agreed upon with little debate.

In Article 1, Section 9, Congress is limited, expressly, from prohibiting the "Importation" of slaves, before 1808. The slave trade was a bone of contention for many, with some who supported slavery abhorring the slave trade. The 1808 date, a compromise of 20 years, allowed the slave trade to continue, but placed a date-certain on its survival. Congress eventually passed a law outlawing the slave trade that became effective on January 1, 1808.

The Fugitive Slave Clause is the last mention. In it, a problem that slave states had with extradition of escaped slaves was resolved. The laws of one state, the clause says, cannot excuse a person from "Service or Labour" in another state. The clause expressly requires that the state in which an escapee is found deliver the slave to the state he escaped from "on Claim of the Party."

It has been said that the seeds of the Civil War, which was fought, despite revisionist theory to the contrary, over the issue of slavery, were sown in the compromises of the Constitution on the issue. This is probably true. Slavery, which was started in violence in the kidnapping, shipment, and commerce of human chattel, needed violence to bring it to an end. After the devastation of the Revolutionary War and the unrest in the U.S. under the Articles, a time of peace and recovery was needed to strengthen the nation to a point where it could survive a civil war. The greatest tragedy is that in the nearly 100 years between the start of the Revolutionary War and the end of the Civil War, millions of slaves served, suffered, and died so that the nation could prosper.